In re Wilkins

Decision Date03 January 2003
Docket NumberNo. 49S00-0005-DI-341.,49S00-0005-DI-341.
Citation780 N.E.2d 842
PartiesIn the Matter of Michael A. WILKINS.
CourtIndiana Supreme Court

Ronald E. Elberger, Robert B. Clemens, Bose McKinney & Evans, G. Daniel Kelley, Jr., Thomas E. Mixdorf, Ice Miller, Indianapolis, IN, for the Respondent.

Donald R. Lundberg, Executive Secretary, Charles M. Kidd, Staff Attorney, Indianapolis, IN, for the Indiana Supreme Court Disciplinary Commission.

RUCKER, Justice.

Respondent has moved that I disqualify myself from participation in this case. More precisely, he has filed a petition for rehearing from this Court's 3-2 decision sanctioning him for violating Indiana Professional Conduct Rule 8.2(a). In part, respondent seeks rehearing "in order for Justice Rucker to address whether recusal is appropriate in light of his participation on the Court of Appeals' panel in Michigan Mutual Insurance Company v. Sports, Inc., 698 N.E.2d 834, 845 (Ind.Ct. App.1998)." Consolidated Pet. for Reh'g and Mot. for Justice Rucker to Recuse at 8.

To place respondent's motion in context, a brief summary of the facts is appropriate. In a lawsuit against Michigan Mutual Insurance Company alleging bad-faith denial of insurance coverage, a jury awarded compensatory and punitive damages to Sports, Inc. The trial court entered judgment on the jury's verdict, and on review the Indiana Court of Appeals affirmed the judgment. I was a member of the Court of Appeals at that time, and along with Judges Darden and Garrard I served on the panel assigned to the case. Judge Darden wrote the opinion and Judge Garrard concurred. I concurred in the result—neither joining in the reasoning or rationale of the opinion, nor writing a separate opinion of my own.

Michigan Mutual did not seek rehearing of the Court of Appeals' opinion. Rather, represented by the respondent and an attorney from the State of Michigan, Michigan Mutual filed a petition to transfer in this Court. In the petition respondent asserted that the Court of Appeals' opinion materially misstated the record by making affirmative misstatements of fact. In his supporting brief respondent amplified his assertion with the following statement:

The Court of Appeals' published Opinion in this case is quite disturbing. It is replete with misstatements of material facts, it misapplies controlling case law, and it does not even bother to discuss relevant cases that are directly on point. Clearly, such a decision should be reviewed by this Court. Not only does it work an injustice on appellant Michigan Mutual Insurance Company, it establishes dangerous precedent in several areas of the law. This will undoubtedly create additional problems in future cases.

Br. in Supp. of Appellant's Pet. to Trans. at 1.

Indeed, the Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for Appellee Sports, Inc., and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision).

Id. at n. 2. On March 5, 1999, the Indiana Supreme Court denied appellant's petition to transfer. Mich. Mut. Ins. Co. v. Sports, Inc., 706 N.E.2d 555, 556 (Ind.1999). The Court also entered an order striking Michigan Mutual's brief as a "scurrilous and intemperate attack on the integrity of the Court of Appeals." Id. at 555. I joined this Court thereafter on November 19, 1999.

On May 30, 2000, the Disciplinary Commission of the Supreme Court of Indiana filed a complaint against respondent Michael A. Wilkins. Based on the above quoted portions of the Michigan Mutual transfer brief, the Commission alleged that respondent violated Rule 8.2(a) of the Rules of Professional Conduct.1 A hearing officer was appointed and after conducting a hearing determined that respondent violated the Rule as charged. On June 13, 2002, respondent filed a petition with this Court seeking review of the hearing officer's determination. The five-page petition did not cite the Court of Appeals' opinion in Michigan Mutual. In addition to the petition itself, respondent also filed a twenty-seven page supporting brief. Except for two passing references that were inserted in footnotes, respondent again did not cite the Court of Appeals' opinion in Michigan Mutual. See Br. in Supp. of Pet. for Review at 2 n. 3, 17 n. 31. Rather, respondent focused on the comments in his 1999 transfer brief to this Court and the substance of the alleged Rule violation.

On October 29, 2002, this Court issued a 3-2 per curiam opinion determining that respondent violated Professional Conduct Rule 8.2(a) and imposing a sanction of a thirty-day suspension from the practice of law. See In re Wilkins, 777 N.E.2d 714 (Ind.2002)

(Shepard, C.J., and Dickson and Rucker, JJ., concurring; Sullivan and Boehm, JJ., dissenting with separate opinions). Thereafter on November 19, 2002, respondent filed a petition for rehearing. For the first time since these proceedings began, nearly a year and a half ago, respondent moves for my recusal. He does not seek my immediate disqualification. Rather, respondent wants me to remain a part of these proceedings long enough to vote on his petition for rehearing and only then cease further participation in this case.

Citing Canon 3(E) of the Indiana Code of Judicial Conduct respondent contends that my recusal "was and is required." Consolidated Pet. for Reh'g and Mot. for Justice Rucker to Recuse at 11.2 The Canon provides in relevant part:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding....

Jud. Canon 3(E)(1)(a). The underlying thrust of respondent's argument is that because I served on the panel whose opinion respondent criticized, I should have disqualified myself sua sponte from hearing his disciplinary matter.

There is no question that a judge is required to disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned. The Canon demands it. In addressing those concerns the issue has been cast as "whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case." Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir.1985). As this court has recently stated, the issue "is not whether the judge personally believes himself or herself to be impartial, but whether a reasonable person aware of all the circumstances would question the judge's impartiality." In re Morton, 770 N.E.2d 827, 831 (Ind. 2002).

The facts and circumstances are these. First, I was completely unaware that I had served on the underlying Court of Appeals panel. Neither before the hearing officer nor in his petition to this court for review of the hearing officer's determination did respondent ever mention that I served on the panel. Rather, at every opportunity respondent focused on the substance of the comments that provided the basis for this disciplinary action. That was my focus as well. Respondent does not reveal why he failed before now to bring this matter to my attention. However, citing to several cases in which I served on the Court of Appeals panel and sua sponte decided not to participate once a party sought transfer to this Court, respondent says that it was "a forgone conclusion that Justice Rucker would recuse." Consolidated Pet. for Reh'g and Mot. for Justice Rucker to Recuse at 9. However, each case respondent refers to in support of this assertion involved a petition to transfer from a case in which I either wrote a separate dissenting opinion, see Bagnall v. Town of Beverly Shores, 705 N.E.2d 213 (Ind.Ct.App.1999)

; or concurred outright in the majority opinion, see In re Estate of Troxel, 720 N.E.2d 731 (Ind.Ct.App.1999); Dullen v. State, 718 N.E.2d 1237 (Ind.Ct.App.1999); Rheem Mfg. Co. v. Phelps Heating & Air Conditioning, Inc. 714 N.E.2d 1218 (Ind. Ct.App.1999); United States Gypsum, Inc. v. Ind. Gas Co., Inc., 705 N.E.2d 1017 (Ind.Ct.App.1998); Bosecker v. Westfield Ins. Co., 699 N.E.2d 769 (Ind.Ct.App.1998). Unlike a petition to transfer where the Court of Appeals' opinion or decision itself is being challenged, thereby instantly revealing the composition of the panel deciding the case, the matter before this Court was different. The issue before us was not the Court of Appeals' opinion, but rather what the respondent had to say about the opinion. The composition of the panel deciding the opinion was not at all apparent, nor in my view particularly relevant. The comments themselves were at issue; and regardless of the panel members, either the comments were made "with reckless disregard as to [their] truth or falsity concerning the ... integrity of a judge" or they were not. See Prof. Cond. R. 8.2(a).

In addition, by the time respondent's disciplinary matter reached this Court, I had served on the Court of Appeals for nearly nine years. During that period the Court of Appeals issued over fourteen thousand opinions, some of which, obviously, I authored, others of which I served as a member of the panel. Absent the respondent bringing to my attention that I happened to have served on the underlying Court of Appeals panel in this particular case, I simply would have had no reason to assume my involvement. And this is especially so considering that in his brief before this Court challenging the hearing officer's disciplinary ruling, respondent chose to cite to the Court Appeals opinion only in passing in two of forty-five footnotes. Judges cannot be "call[ed] upon... to perform the impossible—to disqualify themselves based on facts they do not know." Liljeberg v. Health Servs. Acquisition Corp....

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4 cases
  • In re Jacobs
    • United States
    • Minnesota Supreme Court
    • September 14, 2011
    ...by the standard is an objective, unbiased layperson with full knowledge of the facts and circumstances. See, e.g., In re Wilkins, 780 N.E.2d 842, 848 (Ind.2003); Logan, 689 P.2d at 784; Petzold v. Kessler Homes, Inc., 303 S.W.3d 467, 473 (Ky.2010); Blevens v. Town of Bow, 146 N.H. 67, 767 A......
  • Ind. Gas Co. v. Ind. Fin. Auth., Ind. Gasification LLC
    • United States
    • Indiana Supreme Court
    • August 14, 2013
    ... ... Tyson v. State, 622 N.E.2d 457, 459 (Ind.1993) (citing Perkins v. Spivey, 911 F.2d 22 (8th Cir.1990), cert. denied,499 U.S. 920, 111 S.Ct. 1309, 113 L.Ed.2d 243 (1991)). But as my colleague Justice Rucker noted in In Re Wilkins, this test cannot be based solely on that hypothetical reasonable person's assessment of the facts as reported or the allegations made in the public domain, without a fuller examination. 780 N.E.2d 842, 845 (Ind.2003) (framing the inquiry as whether a reasonable person aware of all the ... ...
  • Martin v. State
    • United States
    • Indiana Appellate Court
    • June 17, 2015
    ...aware of all the circumstances would question the judge's impartiality.” In re Morton, 770 N.E.2d 827, 831 (Ind.2002).In re Wilkins, 780 N.E.2d 842, 845 (Ind.2003).2 [12] Applying that test to the case before us, we cannot conclude that a reasonable person, aware of all the circumstances, w......
  • Peterson v. Borst, 49S02-0302-CV-71.
    • United States
    • Indiana Supreme Court
    • March 17, 2003
    ...CDC until that time, and I accept that. But the timing of the motion is not significant here. The timing of the motion in In re Wilkins, 780 N.E.2d 842 (Ind.2003), was important because the motion brought to the attention of the affected Justice facts that were not known to him, and was fil......

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