In the Matter of: Thomas M. Dixon

994 N.E.2d 1129, 2013 WL 5536613
CourtIndiana Supreme Court
DecidedOctober 8, 2013
Docket71S00-1104-DI-196
StatusPublished
Cited by27 cases

This text of 994 N.E.2d 1129 (In the Matter of: Thomas M. Dixon) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of: Thomas M. Dixon, 994 N.E.2d 1129, 2013 WL 5536613 (Ind. 2013).

Opinions

PER CURIAM.

The Indiana Supreme Court Disciplinary Commission filed a “Verified Complaint for Disciplinary Action,” against Respondent Thomas M. Dixon, charging him with attorney misconduct based on statements he made in support of a motion for a change of judge. Respondent’s 1995 admission to this state’s bar subjects him to this Court’s disciplinary jurisdiction. See Ind. Const, art. 7, § 4.

This matter is now before the Court on the report of the hearing officer appointed by this Court to hear evidence on the verified complaint and on the post-hearing briefing by the parties. We conclude that Respondent did not engage in attorney misconduct and therefore enter judgment in Respondent’s favor.

Background

A. Events Giving Rise to Misconduct Charges

Respondent, a graduate of University of Notre Dame (“Notre Dame”), has practiced law in the South Bend area since 1995. In May 2009, there were pro-life demonstrations in response to announcements that President Barack Obama would speak at Notre Dame and receive an honorary degree. More than 88 individuals were arrested by Notre Dame police and other local police, and were charged with trespass on Notre Dame grounds. Respondent represented 85 of those who were arrested. The 85 cases were consolidated into a single case, State of Indiana v. All Consolidated Cause Defendants, under Cause No. 71D01-0905-CM-03246. Respondent planned to present a novel defense for his clients — that they had a contractual right to pray on the Notre Dame campus originating in Catholic canon law.

The consolidated case was assigned to Judge Jenny Pitts Manier (“Judge Mani-er”) in St. Joseph Superior Court. Judge Manier is married to Professor Edward Manier, who was a tenured professor at Notre Dame and taught there for 48 years. Professor Manier retired in 2007. He continues to have teaching privileges at Notre Dame, although he does not teach, and he has a research grant.

Judge Manier had presided in an earlier case entitled Kendall v. City of South Bend, 71D07-0602-PL-52, a case in which Judge Manier ruled that Kendall, a pro-life supporter, was subject to an injunction regarding an abortion facility that was en[1132]*1132tered in a different case years earlier. Respondent represented Michael Marsh, who sought to intervene, asserting that he was similarly situated to Kendall and that his rights would be affected by the decision in that case. Judge Manier had denied intervention.

On August 28, 2009, Respondent filed an 11-page Motion for Change of Judge to have Judge Manier recuse herself from the consolidated case. The motion included a three-page affidavit from Respondent (“First Affidavit”) and supporting exhibits. After a hearing, Judge Manier denied the motion. On September 28, 2009, Respondent filed a 17-page motion to reconsider with supporting exhibits, including his nine-page supplemental affidavit (“Second Affidavit”). Judge Manier also denied the motion to reconsider.

Respondent sought Judge Manier’s re-cusal based on her husband’s alleged advocacy in favor of pro-choice causes and academic freedom for Notre Dame, along with Judge Manier’s failure to disclose this alleged advocacy. Respondent argued that his clients were arrested because they acted on beliefs about abortion and academic freedom for Notre Dame that were directly contrary to the beliefs allegedly advocated by Professor Manier during his career. Judge Manier also made statements that Respondent believed were inaccurate about her husband’s writings at the hearing on the Motion for Change of Judge. In addition, Respondent cited Judge Mani-er’s allegedly erroneous rulings in Kendall as a basis for recusal.

On October 8, 2009, Respondent filed a Motion for Certification of an Interlocutory Appeal requesting to appeal the recu-sal issue. Judge Manier certified the issue for appeal, but before the issue reached the Court of Appeals, Judge Manier filed a grievance against Respondent with the Commission and recused herself from the case.

Respondent filed timely notices of tort claim against Notre Dame related to potential civil suits by his clients against the University in order to preserve his clients’ rights in the event the University was found to be a government entity. Both the civil and criminal cases were resolved in 2011. Under the settlement, the clients agreed to release all claims against Notre Dame and the State dismissed all criminal charges against all of Respondent’s clients.

B. The Commission’s Charges of Misconduct

In its verified complaint, the Commission asserts that several statements Respondent made in the Motion for Change of Judge, Motion to Reconsider, First Affidavit, and Second Affidavit violated Indiana Professional Conduct Rule 8.2(a), which provides: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.... ”

Specifically, the Commission asserts that the following statements Respondent made in support of his Motion for Change of Judge violated Rule 8.2(a):

Statement A. “Such large scale litigation, and the results therefrom, could adversely impact Notre Dame’s bottom line, which in turn could have a negative impact on Notre Dame’s current and future employees. It is in Professor Manier’s interest to see that this does not occur. In short, Judge Manier and her husband are simply too intertwined with, and invested in, the University of Notre Dame and its mission to be allowed to preside over these cases.” Statement B. “Judge Manier’s inability to admit the intellectual and political (in the sense of policy setting) consanguinity between her husband’s career mission and Notre Dame’s current mission, calls into profound question her ability to [1133]*1133navigate the waters of defendants’ legal defenses related to their contractual rights to be where they were when they were arrested.”
Statement C. “Judge Manier’s ruling applying the injunction to. Mrs. Kendall can be explained in only one of two ways: either Judge Manier did not understand the privity requirement of Trial Rule 65, or she did not feel duty bound to apply the rule because she was biased in favor of the abortuary.” Statement D. “Judge Manier’s refusal to allow Marsh into the case, when she knew Mrs. Kendall wanted out of the case, demonstrates to me that she was willing to ignore the applicable legal standards in order to move the case in a direction that negatively affected Marsh’s legal rights without giving him the ability, as required by Trial Rule 24, to have a voice in the process or defend the same.”

Verified Complaint at 2-4 (emphasis added to show the segments the hearing officer ultimately concluded to violate Rule 8.2(a).)

C. The Hearing Officer’s Conclusions

Statement A. The Commission alleged that Respondent’s statements that Judge Manier’s husband’s relationship with No-tre Dame prejudiced her ability to decide his clients’ case fairly was not based on the law and facts. The hearing officer concluded that Respondent did not state that Judge Manier’s connection to Notre Dame actually prejudiced her ability to preside over the Notre Dame trespass cases.

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Bluebook (online)
994 N.E.2d 1129, 2013 WL 5536613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-thomas-m-dixon-ind-2013.