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In re Brown

Supreme Court of Indiana

March 4, 2014

IN THE MATTER OF: THE HONORABLE KIMBERLY J. BROWN, JUDGE OF THE MARION SUPERIOR COURT

Corrected on March 5, 2014.

As Corrected March 5, 2014.

JUDICIAL DISCIPLINARY ACTION. Hon. Viola J. Taliaferro, Hon. Rebecca S. McClure, and Hon. Sheila M. Moss, Special Masters.

ATTORNEY FOR HON. KIMBERLY J. BROWN: Karl L. Mulvaney, Indianapolis, Indiana.

ATTORNEYS FOR THE COMMISSION ON JUDICIAL QUALIFICATIONS: Adrienne L. Meiring, Elizabeth Daulton, Thomas M. Carusillo, Indianapolis, Indiana.

Dickson, C.J., and David, Massa, and Rush, JJ., concur. Rucker, J., concurs in part with separate opinion.

OPINION

Page 620

PER CURIAM.

This matter comes before the Court as a judicial disciplinary action initiated by the Indiana Commission on Judicial Qualifications (" Commission" ) against Kimberly J. Brown (" Respondent" ), Judge of the Marion Superior Court. Article 7, Section 4 of the Indiana Constitution and Indiana Admission and Discipline Rule 25 give the Indiana Supreme Court original jurisdiction over this matter. After considering the evidence, the report of the Special Masters appointed in this matter, and the parties' arguments, we conclude that the Commission has demonstrated, by clear and convincing evidence, that the Respondent engaged in significant judicial misconduct, and we conclude that the misconduct warrants her removal from office.

Page 621

Background

From 2002 through 2008, the Respondent served as Judge of the Washington Township of Marion County Small Claims Court. Since January 1, 2009, she has served as Judge of the Marion Superior Court. From January 2009, through December 31, 2012, she was assigned to the Marion Superior Court's Criminal Division 16 (" Court 16" ), where the docket consisted primarily of misdemeanor and D felony domestic violence charges. Effective January 1, 2013, the Respondent was assigned to Criminal Division 7 (" Court 7" ), where the docket consisted primarily of misdemeanor cases.

After receiving an informal complaint, the Commission investigated and, on August 26, 2013, filed a Notice of Institution of Formal Proceedings and Statement of Charges, in forty-five counts, charging the Respondent with violations of the Code of Judicial Conduct, conduct prejudicial to the administration of justice, and a few acts of willful misconduct. The charges alleged mismanagement, delays, and dereliction of judicial duties on cases; display of an inappropriate demeanor, retaliation, and creation of a hostile environment for attorneys and others working in the court; failure to complete necessary paperwork and adequately train or supervise court staff, which resulted in delayed releases of defendants from jail; and failure to cooperate with members of the Marion Superior Court's Executive Committee to address the underlying issues that led to the delayed releases. The Respondent filed an answer to those charges and later amended her answer.

On September 27, 2013, this Court appointed three Judges to serve as Special Masters (" Masters" ) to receive evidence concerning the charges.[1] Thereafter, the Commission amended its charges to add two more counts, and the Respondent filed her answer to the additional counts. The Masters conducted a hearing November 4 through 10, 2013, during which the Commission called forty witnesses, and the Respondent called thirty-nine. More than 230 exhibits were tendered. At the conclusion of the hearing, the Masters allowed additional time to file proposed findings of fact and conclusions of law (" proposed findings" ). The Commission filed its proposed findings on November 27, 2013.

The Masters granted the Respondent's request for additional time to file her proposed findings, but the Respondent did not submit proposed findings by the extended deadline. Instead, she later filed a Submission to Discipline in Lieu of Submission of Findings (" Submission" ). In her Submission, the Respondent admitted most of the disciplinary violations alleged, apologized, and suggested as a sanction that she be suspended from office for sixty days.

Page 622

The Commission responded to the Submission.

On December 27, 2013, the Masters filed their 107-page Findings of Fact, Conclusions of Law and Recommended Sanction (" findings" ). The Masters found that the Respondent committed judicial misconduct alleged in forty-six of the forty-seven counts, and they recommended that the Respondent be removed from office. On January 2, 2014, the Masters filed a supplemental report in which they rejected the Respondent's Submission and amended their findings to clarify that although they were recommending the Respondent's removal from judicial office, they were not recommending suspension of her license to practice law.

On January 3, 2014, the Commission filed a response to the Masters' findings and concurred in the recommendation for removal from office. On January 9, 2014, this Court issued an order suspending the Respondent from office on an interim basis pending the final disposition of this matter. See Admis. Disc. R. 25(V)(B). Next, the Respondent filed a verified petition and brief opposing removal and urging imposition of a sixty-day suspension. The Commission filed its reply brief. Accordingly, this matter is fully briefed and before this Court for a final decision.

Discussion

A judicial officer may be disciplined for, among other things, conduct prejudicial to the administration of justice and violation of the Code of Judicial Conduct. Ind. Admission and Discipline Rule 25(III)(A). The Commission bears the burden of proving judicial misconduct by clear and convincing evidence. Admis. Disc. R. 25(VIII)(K)(6). This Court reviews the Masters' findings de novo . Admis. Disc. R. 25(VIII)(P)(3).

The Respondent's petition for review acknowledges that her conduct, as set out in the Commission's charges, was prejudicial to the administration of justice and violated the Code of Judicial Conduct. And she does not argue that any particular findings made by the Masters were unsupported by the evidence or otherwise erroneous. Rather, she urges this Court to reject the Masters' recommended sanction and impose a sixty-day suspension. Before considering the appropriate sanction, however, we review the misconduct itself. We have reviewed the Masters' findings concerning the misconduct and hereby adopt and summarize them as set out below.

I. Misconduct

a. Mismanagement, Delays, and Dereliction of Duties

By creating an environment in which court files were difficult to locate, resulting in delays, the Respondent violated Rules 2.5(A)[2] and 2.5(B)[3] of the Code of Judicial Conduct and committed conduct prejudicial to the administration of justice. During her tenure in Courts 16 and 7, the Respondent failed to maintain court files and records in an organized manner that allowed access when needed. Case files were removed from the file drawers and often stored in the Respondent's secure office beyond the reach of others who needed to access them and without any indication of which files were being kept in the Respondent's office. The difficulty locating files was time-consuming and delayed the processing of pleadings and cases. The Respondent often blamed

Page 623

clerk's office employees for missing files that were later found in the Respondent's own office. Files relevant to the Commission's investigation were missing from the place in the Court 7 file drawers where they should have been when a clerk's office employee and others first looked for them. On one occasion, a commissioner and other court staff could not locate mental health evaluations for a hearing, and the Respondent had to be called in from elsewhere to locate them. On another occasion, the Respondent took possession of two exhibits entered as evidence in an attorney discipline hearing in 2012 in Matter of Joseph B. Barker, No. 55S00-1008-DI-429, 993 N.E.2d 1138 and she lost those exhibits and was still unable to produce them more than one year after the hearing.

By delaying rulings and failing to complete paperwork necessary to effectuate court decisions, the Respondent violated Rules 1.2[4] and 2.5(A) of the Code of Judicial Conduct and committed conduct prejudicial to the administration of justice. Indiana Trial Rule 53.1 requires prompt rulings on motions, but the Respondent delayed ruling on many matters. She delayed ruling for nearly five months on the defendant's motion to dismiss in one case, delayed ruling for nearly five months on the defendant's motion for appointment of appellate counsel in a second case (which resulted initially in dismissal of that defendant's appeal), and delayed ruling for almost eleven months on the defendant's motion to suppress in a third case, prompting the State to file two motions for a ruling in the interim. In May 2009, a defendant filed a petition for post-conviction relief in Court 16, but the Respondent never ruled on it or set it for a hearing, and the matter was not addressed until a new judge took over that court in 2013. In 2012, the Respondent frequently took more than two months, and in some instances up to four months or more, to rule ...


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