Northwest Indiana Officials Trample on the Constitution on Constitution Day

On Constitution Day, no less.  The Northwest Indiana Gazette has this interesting story:

A Hammond man is behind bars tonight being held without bail. 25 year old Kevin Kirby of Hammond posted the following Facebook comment yesterday:

Shortly thereafter, the comment went viral. The Gazette received it from several sources. Today the Gazette has learned that bond for Kirby has been revoked on an unrelated Felony charge. In May of this year, Kirby was charged with resisting arrest as a result of an incident that occurred in Highland. He was out on bond for that offense. After Kirby’s comments went viral, prosecutors quickly moved to revoke his bond on that charge. According to Court documents, Prosecutors faxed a notice of hearing to Kirby’s attorney on September 16. A hearing was scheduled for September 17 but neither Kirby nor his attorney showed. At that time, the Court issued a warrant for his arrest for failure to appear which was quickly executed.

Information as to the nature of the revocation hearing was not available at the time of this article. Presumably, the revocation had something to do with his comments. Nonetheless, the case raises a serious due process issue. There is no indication in the record that Kirby’s lawyer actually received the notice of hearing. Absent actual notice, a failure to appear warrant should not issue absent an imminent and specific identifiable threat. On the other hand, if action was not taken and someone was injured, we may be having a different conversation.

...

My immediate thought was that there is also quite possibly a free speech violation.  Kirby's comment was crass, even reprehensible, but crass and reprehensible comments are still protected speech.  Punishing that speech by revoking one's bond could be considered to be chilling of Kirby's free speech rights in violation of the First Amendment.  

Then, as the Gazette notes, you have the issue of the arrest on a failure to appear for a bond hearing with the notice of the hearing only being given by a faced order to the man's attorney one day before the hearing.   Obviously with such a short notice, it's not surprising that the defendant and the attorney weren't there.   Yes, there could be a due process problem.

It really looks like a bunch of people - police officers, the prosecutor, and judge - exercised extremely poor judgment in overreacting to Kirby's comment.  It might be time too for them to take a refresher course on the Constitution.

Judge's Order Requiring Male Attorney to Wear Socks May Violate the Equal Protection Clause

By now most people have heard about the saga of Todd A. Glickfield, the attorney who was admonished by Dean A. Young, Blackford Circuit Court Judge, for not wearing socks.  In the "Order Directing Proper Attire Be Worn By Todd A. Glickfield," which was distributed to all members of the Blackford County bar, the Judge Young the facts that led to the order:

During a break in the proceedings the Court advised Attorney Glickfield that he was not

Todd A. Glickfield

appropriately dressed as required by Local Rule, and that the Court would insist upon him wearing socks should he choose to present cases in the Blackford Circuit Court in the future.  Attorney Glickfield advised the Court that "I hate socks" and that he's had "this conversation with other judges in other courts," and that unless the Judge of the Blackford Circuit Court could show him applicable "orders or other legal authority" he would continue his habit of appearing sockless in court."

The judge responded by issuing an order detailing the dress code that Attorney Glickfield needed to follow, including that socks be worn.  Most commentators around Indiana and even the country (the story has been picked up nationally) agree, or at least assume, that the judge had the right to set and enforce this dress code in his courtroom. 

But there is a problem.  Rhetorical Paragraph #5 of the order states:

That the Blackford Circuit Court considers socks to constitute a part of "appropriate business attire" for male members of the bar presenting cases before the Court." (emphasis supplied)

In other words, the wearing socks rule doesn't apply to female attorneys who appear in Judge Young's court.

Judge Young may well not be aware of it but earlier this year the Seventh Circuit handed down Hayden v. Greensburg Community Schools in which the Court held a hair length limit enforced by the boy's basketball team violated the equal protection clause when that hair lengthy limit didn't apply to girl basketball players at the school.  In that case, Greensburg Schools pointed out that they were different teams and that if girls played on the boys' team they would be subject to the hair length limit.  That didn't matter to the Seventh Circuit.  Here, the argument of separate teams isn't even available as a defense to the constitutionality of Judge Young's order.  Lawyers, both male and female, appear before the Blackford Circuit Court.

Here is a portion of the Hayden decision:

The Haydens plainly have made out a prima facie case of discrimination. The hair-length policy applies only to male athletes, and there is no facially apparent reason why that should be so. Girls playing interscholastic basketball have the same need as boys do to keep their hair out of their eyes, to subordinate individuality to team unity, and to project a positive image. Why, then, must only members of the boys team wear their hair short? Given the obvious disparity, the policy itself gives rise to an inference of discrimination. 

The same thing could be said for socks.  There is no reason for treating male and female attorneys differently in terms of wearing socks other than the adopted rule reflects traditional differences in how men and women dress.   Clearly tradition alone is no longer a sufficient reason to treat the genders differently in imposing a dress code, even in a court of law.

Note:  A special thanks to The Indiana Law Blog for putting the Glickfield order online.

Judge's Actions Holding Kokomo Mayor in Contempt Raises Issues Regarding His Abuse of Contempt Power, Lack of Temperament

Over at Masson's Blog, attorney Doug Masson beat me to the punch on writing an article questioning whether Howard County Superior Court Judge William Menges overstepped his legal authority in holding Kokomo Mayor Greg Goodnight in contempt over the issue of construction materials supposedly blocking courthouse access:    WISH-TV recaps what happened:

William Menges, Judge
Howard County Superior Court #1

Outside the Howard County Courthouse there is construction underway on the Industrial Heritage Trail.  The construction has at times forced changes in the normal delivery of jail inmates to the courthouse.

Then, on Tuesday afternoon construction materials were placed in the driveway blocking
access.  To Judge Menges that was an act of contempt by Mayor Goodnight.

He sent the Sheriff to Goodnight’s office with a message.  “If you don’t come with me over to the judge’s chamber,” Goodnight quoted the Sheriff as saying, “we’re going to take you to jail.”

Through a spokesperson the judge said he can’t comment on the record.  His contempt order says the mayor blocked access to the courthouse and says it was “intentional and done solely for the purpose of disrupting the regular proceedings of the court.”

The judge ordered that Goodnight be sent to jail but before he arrived there in a sheriff’s department van, the construction materials were moved.

...

Masson raises a key legal issue:  "Wouldn’t that be, at best, indirect contempt, requiring the court to provide due process, including appointment of a special judge, before threatening to incarcerate the mayor? (See IC 34-47-3)."

Yep, it would certainly appear to be.  I would add that Judge Menges had also become personally involved in the dispute.  He had no business whatsoever presiding over the contempt proceedings. A special judge should have been appointed.  Judges should not rule in indirect contempt cases where they could themselves be a witness to the contempt.   And they most certainly should never preside over cases when they are angry.  When a judge finds himself or herself getting angry, the judge should voluntarily step down from the case.

Masson raises some other excellent questions that he suggests would be a "good exercise for a law school exam!"  Indeed.

But here is part of the WISH-TV story that I find the most troubling:

Judge Menges also threatened a Kokomo newspaper reporter with contempt Tuesday.  The reporter declined comment.

Two years ago the judge found a woman in contempt of court for having a noisy baby in the courtroom, and in 2011, he made headlines by issuing a court order instructing the county auditor to pay for the new copy machine he wanted.

The facts regarding the reporter need to be made public.  That and the other incidents raise the distinct possibility that the Goodnight contempt matter might not just be a one time situation in which Judge Menges displayed extremely poor judgment and abused his contempt authority.  Rather, it appears to be a pattern of abusing power that suggests Judge Menges may well not have the temperament to be a judge.

While Mayor Goodnight talks possible legal action, I would imagine he will also end up filing a  complaint with the Indiana Judicial Qualifications Commission, the body that disciplines the state's judges. Given Judge Menges pattern of conduct, it may well be a complaint that is found to have merit.

Annual Fee for Indiana Attorneys to Increase By 25%; Points to Need for New Chief Justice to Examine Operations of Judicial Agencies Funded by Fee

In an order handed down by the Indiana Supreme Court last month, it was announced that the annual attorney fee for active licenses would increase by 25% from $145 to $180.  These fees go to fund the operation of the Indiana Supreme Court Disciplinary Commission, Judges and Lawyers Assistance Program and the Commission for Continuing Legal Education.  Other fees that also fund those judicial agencies are seeing a similar increase.

Officials immediately patted themselves on the back for having a low attorney annual fee compared to other states. The Indiana Lawyer reports:

Jim Dimos, President,
Indiana State Bar Association

Regarding fees compared to other states, “Indiana is so low that whether we’re counted as lowest or second-lowest is negligible,” [Supreme Court spokeswoman Kathryn] Dolan said. That analysis is tricky, though, she said, because some states include mandatory state bar fees or other fees that Indiana doesn’t.

Even among voluntary bar states, Indiana’s fees are below average, Dolan said. Indiana State Bar Association President Jim Dimos said increases are never popular, but the registration dues remain low compared to states that don’t include mandatory bar fees.

“From our experience at the state bar, the court seems to administer things relatively modestly,” Dimos said. “While no one’s happy about paying more fees, we’re confident the court thought long and hard about this and believes they need these resources to continue to provide services to lawyers in the state of Indiana.”

Of course, none of this praise addresses much needed questions that need to be asked about why the operating costs of these judicial agencies have increased so much as to require a 25% increase even though inflation has been negligible since the last increase in 2011.

I can give Dolan a pass.  She's just a spokeswoman doing her job.  However, you would think Dimos, as President of the Indiana State Bar Association, might actually stand up for the attorneys his organization represents and question the need for such a large increase while many attorneys, especially younger attorneys saddled by huge law school bills, are struggling financially.  Not unexpectedly though, the bar association once again fails to advocate for attorneys, which is exactly why so many attorneys don't join the association.

Let me do Dimos' job for him.  The problem is that these judicial agencies, in particular the Disciplinary Commission have not controlled their costs and prioritized their activities.  This past year we have witnessed the Commission spending enormous amounts of money in zealous, overreaching efforts to pursue attorneys on minor violations unrelated to protecting the public from dishonest attorneys.  Meanwhile attorneys who have committed extremely serious ethical lapses or even are convicted off felonies, go unpunished by the Commission of have their prosecutions delayed for months if not years.

This is a fact I know all too well.  The Disciplinary Commission spent over $20,000 in their extremely aggressive prosecution of me for criticizing a judge in an email.  That's the entire disciplinary fees paid by 142 attorneys.  And that figure is expenses only, i.e. it does not count the salaries of the attorneys and scores of employees at the Commission who worked on my case.  My prosecution wasn't about my being an unethical attorney.  It was a prosecution that was filed and zealously pursued because I had publicly criticized the Commission on my blog, including Executive Secretary Michael Witte. During later filings, the Commission all but admitted that fact when it asked for a one year suspension for me in part because I had publicly criticized the Commission on my blog.

I'd like to say the way my prosecution was pursued was unique.  But repeatedly we have seen a Disciplinary Commission exercise such poor judgment in the prosecutions the Commission chooses to pursue and how those prosecutions are pursued, that the Commission has drawn editorial criticism of legal blogs and scholars across the country.  Even non-legal publications have written critically of the activities of the Commission.

Chief Justice Loretta Rush

Yesterday we saw the swearing in of a new chief justice, Loretta Rush of Lafayette.  As reported by Indiana Politics, Chief Justice Rush identified reform in Marion County of the small claims courts and judicial selection process as goals of her new administration.  I applaud that much needed focus of reform efforts and have written about those subjects several times.  I hope too that she will take a close and comprehensive look at the operations various judicial agencies for which the Indiana Supreme Court is responsible.  The operations of the Disciplinary Commission in particular need to be reviewed and major reforms instituted, reforms that help the Commission reprioritize so its primary task is protecting the public from dishonest attorneys.  There also needs to be much more transparency in the disciplinary process.

Most importantly attorneys need to have the opportunity to provide feedback about their experiences with the Commission to the Chief Justice in a confidential manner.  Right now attorneys across the State are fearful that if they dare publicly criticize the Commission, and virtually every attorney does privately, they will become on the Commission's radar and have their legal careers jeopardized.  As someone who has experienced the wrath of the Commission for speaking out publicly against it, I know that retaliation from the Commission is a real possibility for any attorney taking the route I did of speaking out about the need for reform in the disciplinary process.

Indiana Disciplinary Commission Doubles Down on Retaliation Against Ogden; Points to Need for New Leadership

No one though should accuse Executive Secretary Witte of not being persistent.  With his prosecution of me apparently not being well received before the Supreme Court, he filed a new grievance against me.  This time Witte is claiming that I violated the confidentiality of a person who contacted me about filing a lazy judge motion against Marion County Judge Patrick McCarty who she believed had mishandled her child custody case, leaving her child in danger.  The potential client had reached out to me because she had found my blog and wanted legal representation and her story told.  I informed her I could not represent her because McCarty had been a witness against me with regard to one of the grievances Witte had filed.  I didn't want it to look like my filing a lazy judge praceipe was retaliation against Judge McCarty for testifying against me.

Executive Secretary Michael Witte

A few days later the woman was shot 13 times by her ex outside a day care center on the northwest side of Indianapolis.  I wrote on my blog about her being shot and the lazy judge praecipe she filed pro se that Judge McCarty had attempted to reject but was overruled by the Indiana Supreme Court.  On my blog, I wrote about my having talked to the woman about legal representation.  (By the way, the fact that an attorney and possible client meet and discuss possible legal representation is not in and of itself protected by attorney-client privilege.)   The woman unbelievably survived the shooting.  Although she said she had no problem with the article I wrote, that did not stop Witte from filing a grievance against me, without even talking to her, in an effort to claim the woman's confidentiality rights had been violated. 

One would think Witte would have been chastised by the Supreme Court opinion in my case rejecting almost the entire Disciplinary Commission's prosecution of me.  Not so. The Commission is doubling down on its retaliatory efforts  Apparently the very Disciplinary Commission attorney who prosecuted me and badly lost, who was also the interim Executive Secretary of the Commission between Donald Lundberg's tenure and Michael Witte, is personally conducting an investigation of the new grievance.

One of the biggest complaints from Indiana attorneys is that they can't speak out about the disciplinary process because they might face retaliation from the Indiana Disciplinary Commission.  Indeed when I first wrote about the Commission in January 2011, and its targeting of small firm and sole practitioners almost exclusively, I immediately appeared on the radar of Executive Secretary Michael Witte who within a matter of months began filing grievances against me. 

The Executive Secretary has almost absolute power when it comes to dragging attorneys into the disciplinary process.  Even if the Commission loses, the attorney's career is often irreparably damaged and the attorney forced into paying tens of thousands of dollars in legal fees and expenses Thus, the Executive Secretary needs to be someone with good temperament and who is above using his or her position to retaliate against critics and those who best the Commission before the Supreme Court. 

People should reminded that this is not the first time Witte appears to have used his official position  to seek retaliation against people who oppose him.  Witte began his career at the Disciplinary Commission with a grievance filed against him alleging he had abused his position as county attorney to settle political scores.  Republicans in Dearborn County had backed a different candidate in the primary against Witte, who was then Dearborn County Superior Court Judge.  Witte then became county attorney and used his position to ask that a couple Dearborn County politicians, who had supported his opponent in the primary, be prosecuted for Hatch Act violations.  The feds rejected Witte's efforts, deciding there were no Hatch Act violations in Dearborn County.  No word on what happened to the disciplinary grievance filed against Witte but you can bet with Witte assuming the helm it went nowhere.

It's time that the Indiana Supreme Court remove Witte from his position and appoint a new Executive Secretary who has a better temperament and who will refocus the efforts of the Commission on going after unethical attorneys whose conduct endangers the public.

University of Denver Law Professor Loses Attempt to Silence Blog Critic Through Disciplinary Process

An update to a story I wrote about this past January, the blog Outside the Law School Scam reports that the  University of Denver Law Professor Nancy Leong has lost her attempt to get an attorney who criticized her anonymously disciplined.  The investigation (why was there one to begin with?) has closed. 


In my earlier article I quoted from Jonathan Turley's article on the same subject:

There is a free speech controversy swirling around an ethics complaint in Illinois brought by University of Denver law professor Nancy Leong. Leong runs a blog site called Feminist Law Professors and recently discovered the identity of an anonymous commenter who has, according to Leong, left racist and sexist comments. She says that he is a a public defender in his late 40s and she wants him punished for his comments. We have discussed the free speech rights of public employees in an earlier column and blog postings, including the right to speak on blogs and Internet sites. The actions of Leong are troubling for those of us who believe strongly in free speech values, including the right to anonymity.   

The poster used “dybbuk” in posts that referenced Leong. In one post, he talks about a

Prof. Nancy Leong

28-year-old law grad and wrote “I think she has the right age, gender, credentials, and eager-to-please attitude for an ‘odd job’ I have in mind . . . Basically it involves the girl dressing up as a law professor, bending over, and trying to ask me questions about International Shoe while I spank her with a wet slipper.” He also criticized Leong, including her presentation in Hawaii on “racial capitalism,” stating “Now that is what I call a gravy train or, shall I say, a luau train. Law professors enjoying a free Hawaii vacation at some seaside hotel. All they have to do is attend some ‘annual meeting’ of some ‘society’ where they pretend to listen to Leong yap about ‘pragmatic approach[es] of reactive commodification,’ while undressing her with their eyes.”

Leong found dozens of references about her on five different websites as part of her investigation, including disparaging her scholarship and describing her as “a comely young narcissist” and a “law professor hottie.” She also said that other professors that he criticized on these various sites were overwhelmingly directed at women and professors of color. She considers anonymous postings with sexist elements to be unethical. She writes in the complaint that “There are over 6,000 tenured and tenure-track law professors in the United States have less practice experience than I do. Most of them have weaker publishing records than I do. Most of them have weaker teaching evaluations than I do. Almost all of them have been members of the legal academy longer than I have. Almost all of them have more power and prominence than I do. In light of these facts, it is difficult to think of a reasonable explanation for [dybbuk's] obsessive attention to an untenured professor.”

As I noted at the time, Turley was far too kind to Prof. Leong who, as a law professor, should have had a lot more respect for the First Amendment and a free exchange of ideas than she apparently does.  But Prof. Turley finishes on the right note:

...Leong proceeded to file a formal complaint. That is where I have to respectfully disagree with Professor Leong. The effort to punish this poster threatens free speech and creates a chilling message for those who wish to engage in discussions on an anonymous basis. I know that that is not her purpose but she is attempting to discipline a person for criticizing her and engaging in language that she finds offensive. That is anathema for most civil libertarians even though most of us find these writings to be offensive and insulting. As academics, we owe a special duty to free speech and the need to preserve protected spaces for such speech on campus and the Internet. This is precisely why it was so alarming to see Jewish students recently seek to strip anonymity for posters of material that they find objectionable. Free speech comes at a cost, particularly for those who become public figures. The Internet is rife with hateful and false statements. However, it is also the single greatest advance in free speech in history. I am confident that the work of Professor Leong will be remembered long after dybbuk has passed into well-deserved obscurity. However, this should not be part of that legacy.

Do Disciplinary Commisson Attorneys Have An Obligation to Be Honest With the Indiana Supreme Court?

Since the Disciplinary Commission in Indiana is an arm of the Indiana Supreme Court are its attorneys, who are Supreme Court employees, exempt from ethical rules when filing documents with the Supreme Court?

I ask that because throughout my more than year long ordeal with the Disciplinary Commission's over-the-top prosecution of me for criticizing a judge in a private email and sending a letter to judges explaining the law that's supposed to be followed when divvying up civil forfeiture assets, I have had to deal with a Commission attorney - actually an attorney who was acting Executive Secretary of the Commission between the terms of Donald Lundberg and Michael Wittte - who has been  more than willing to make knowingly false representations to the Indiana Supreme Court, sometimes in the form of intentionally omitting information and other times simply lying to the Court.

It began with the Commission in filing formal charges against me claiming I had engaged in "ex parte communication" with Marion County judges by sending the civil forfeiture letter.    Of course the letter I sent was not ex parte, which the Commission knew.  I had copied the letter to the prosecutor, the Attorney General and the Marion County Public Safety Director, the very people involved in the issue of the division of the civil forfeiture proceeds at the trial and appellate level.

Despite the fact that the Commission's allegation was blatantly false, the Commission attorney's continued to make that allegation.  In its order, the Indiana Supreme Court summarily disposed of the claim, pointing out I had no cases before the judges and it was not an ex parte communication.  That was great, but why was I required to for over a year defend myself against this blatantly false claim?  Additionally, why was the Commission's attorney allowed to continually make the false statement that I had sent an "ex parte" letter.

Also, at various times the Commission has claimed I filed "dilatory" motions.  Of course "dilatory" means a baseless motion designed to seek a delay in the proceedings and I had not sought such a delay.  It was on its face a blatantly false accusation.  The fact it was false didn't stop the Commission's attorney from making the claim in court filings.

But it gets worse.  I have filed to have the Supreme Court reconsider its order that I pay 1/2 of the expenses of my prosecution in light of the Commission needless running up the expense bill to the tune of more than $20,000,.  (Yes the Commission spent more than $20,000 in expenses prosecuting me for the email and civil forfeiture letter.)  The Commission had refused to enter into a stipulation of facts, for example, which would have eliminated the need for the 11 1/2 hour hearing that was held for which I'm now obligated to pay half the expense.  How did the Commission's attorney respond?  Once again with deliberate factual misrepresentations to the Indiana Supreme Court.

The Commission represented to the court that I knew all about the Disciplinary Commission's was conducting an investigation relating to the allegations made in the grievances.    That is completely false.  After filing my formal response to the grievances filed by Executive Secretary Michael Witte in early-mid 2011, and receiving an acknowledgement of that response, I was never once contacted again by the Commission again.  Nor were any of my witnesses I provided ever contacted.  I never heard one word from the Commission or had anything to suggest an investigation was being conducted.    In the Spring of 2013, I met with a top official in the Governor Pence administration, seeking in particular a position where I would be a legal watchdog of the state's retirement accounts, that the Commission rushed forward to file charges against me.  The timing could have been a coincidence but then again if it quacks like a duck...  But to suggest to the Court that I knew all about the Commission investigating the matter, could not be more false.  To this day, I doubt there ever was an actual investigation conducted before the charges were filed.

In the recent court filing, the Commission's attorney claims that the Commission asked for a settlement meeting with me and that meeting lasted three hours.  No such request for a settlement meeting ever happened.  I was deposed by the Commission, following which we had a brief conversation about settlement.   The Commission's attorney knew this but he apparently had no problem making a deliberate misrepresent the deposition as a meeting on settlement to the Indiana Supreme Court.

In the Court filing the Commission's said my proposed resolution of the case as a public reprimand was rejected by the Commission.  Again, that is false.  The Commission never even acknowledged I had made settlement offer. The Commission's attorney also reports to the Supreme Court that I refused to admit any rule violation in conjunction with my offer of a public reprimand.  Again, that is completely false.  Such a concession IS IN WRITING in the formal settlement offer tendered to the Disciplinary Commission. Yet this Commission's attorney, despite that written documentation, felt it was perfectly okay to lie to the justices of the Indiana Supreme Court about the settlement offer.

I have been an attorney for 25 years.  Never have I even considered the possibility of making flat out false factual allegations in court filings much less to the Indiana Supreme Court.   To the credit of most of my colleagues, I've rarely seen attorneys who were willing to violate not only ethical rules but than infamous Rule 11 by filing false statements of fact.  Yet during my prosecution I've had to constantly deal with a Commission attorney who is more than willing to make false and misleading factual statements to the Indiana Supreme Court if doing so advances the Commission's prosecution of its leading critic.

I would point to the "lack of candor" rule that makes what the Commission's attorney is doing a violation of the Indiana Rules of Professional Conduct:

Rule 3.3. Candor Toward the Tribunal

(a)    A lawyer shall not knowingly:

(1)    make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; 

(2)    fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or      

(3)    offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Again I ask, are Indiana Supreme Court Disciplinary Commission attorneys exempt from that rule when filing documents with the Indiana Supreme Court?