Moore, Matter of

• Decision Date: 26 September 1983
• Docket Number: No. 1281S343,1281S343
• Citation: 453 N.E.2d 971
• Parties: In the Matter of Robert E. MOORE.
• Court: Indiana Supreme Court

Page 971

453 N.E.2d 971

In the Matter of Robert E. MOORE.

No. 1281S343.

Supreme Court of Indiana.

Sept. 26, 1983.

Thurman M. DeMoss, Franklin, for respondent.

Sheldon A. Breskow, Executive Secretary, Indianapolis, for Indiana Supreme Court Disciplinary Com'n.

PER CURIAM.

This proceeding is before this Court on a single count Verified Complaint filed by the Disciplinary Commission of the Supreme Court pursuant to Admission and Discipline Rule 23, Section 12. As provided in Admission and Discipline Rule 23, a Hearing Officer was appointed, conducted a hearing, and has tendered his findings. The Respondent now seeks review of these findings by this Court. Both parties have filed briefs in support of their respective positions.

Before reviewing the evidence of alleged misconduct, a general challenge to this disciplinary proceeding must be addressed. In his petition for review Respondent asserts that procedural due process is not met by the use of the preponderance of evidence test set forth in this Court's disciplinary rules. Citing Santosky v. Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599. Respondent argues that a finding of misconduct involving unlawful behavior should be predicated, at least, on a "clear and convincing evidence" standard of proof.

Santosky v. Kramer, supra, involved the termination of parental rights; applying the factors set forth in Mathews v. Eldridge (1976), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, a majority of the United States Supreme Court concluded that a "fair preponderance of the evidence standard" in such proceeding was inconsistent with due process. ¹ In the course of this analysis, the Court noted that an intermediate standard of proof (clear and convincing) ² has been mandated where the individual interests at stake in a particular state proceeding are both "particularly important" and "more substantial than the mere loss of money" or necessary to preserve fundamental fairness in a government-initiated proceeding that threatened an individual with "a significant deprivation of liberty" or "stigma". Santosky v. Kramer, 455 U.S. at 756, 102 S.Ct. at 1395.

The interests at stake in the authority cited by Respondent are the fundamental liberty interests associated with the freedom of choice in matters of family life. The interests at stake in the present proceeding are those associated with the judicial license to practice law in this jurisdiction. While the latter is important, it pales in significance when compared to the liberty interests incidental to family life, the adverse social consequence of civil commitment [Addington v. Texas (1979), 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323], the deprivation incidental to deportation [Woodby v. IMS (1966), 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362] or the overtones of denaturalization [Chaunt v. U.S. (1960), 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120]. This difference clearly distinguishes the present case from the cited authority.

An attorney disciplinary action is neither criminal nor civil. This type of proceeding is not intended for the purpose of punishment, but rather to determine the fitness of an officer of the court to continue in that capacity and to protect the courts and public from unfit persons. In re Roberts (1983), Ind. 442 N.E.2d 986. The effective administration of justice, the fair resolution of disputes, and the preservation of individual liberties through advocatory representation relate in good measure to the effectiveness of this disciplinary process.

The procedures adopted by this Court to charge, hear and review issues of professional misconduct recognize the delicate balance of the competing interests. A Respondent is afforded discovery, given timely and complete notice, allowed to confront accusers in an open hearing and permitted a full review by this Court. In re Roberts, Supra. We are inclined to conclude that the Constitution of the United States does not mandate the application of a rigidly defined standard of proof in disciplinary proceedings where the attorney charged with professional misconduct is afforded a fair opportunity to respond to such allegation.

However, even though an intermediate standard of proof may not be required, we are pursuaded that such standard is an appropriate description of the level of confidence the fact finder should have in the correctness of his conclusions, whether or not there is a quantitative distinction. This intermediate standard of proof, "clear and convincing", more reasonably conforms to this Court's analysis of the nature of the disciplinary process and follows the weight of authority. See, Matter of Palmer, (1979) 296 N.C. 638, 252 S.E.2d 784 and cases cited therein.

In this jurisdiction the ultimate fact finder in an attorney disciplinary proceeding is this Court. In re Callahan, (1982) Ind., 442 N.E.2d 1092; In re Murray, (1977) 266 Ind. 221, 362 N.E.2d 128, appeal dismissed, 434 U.S. 1029, 98 S.Ct. 758, 54 L.Ed.2d 777; In re Pawlowski, (1959) 240 Ind. 412, 165 N.E.2d 595. This decision is reached through an examination of all matters before the Court. In light of the above noted consideration of the appropriate standard of proof, this Court will find misconduct only upon clear and convincing evidence.

The remaining issues raised by Respondent relate to the application of this review process and the determination of the facts upon which to judge misconduct.

Respondent is charged with possessing more than 30 grams of marijuana on August 22, 1980, in violation of I.C. 35-48-4-11 which provides that a person is guilty of such crime when he knows that marijuana is growing on his premises and fails to destroy the marijuana plants. The Disciplinary Commission charges that such conduct is violative of Disciplinary Rules 1-102(A)(1), (3) and (6) of the Code of Professional Responsibility for Attorneys at Law.

Many of the findings of the appointed Hearing Officer are not challenged. Accordingly, adopting such findings of fact, this Court now finds that the Respondent is an attorney admitted to practice in this state and is thusly subject to this Court's professional disciplinary authority. In the summer of 1980, while serving as a Deputy Prosecuting Attorney in Jennings County, the Respondent lived part-time in a furnished rental home in Scipio, Indiana. These premises included a vegetable garden and a detached garage building. On August 22, 1980, an Indiana State Police Officer observed marijuana growing within the rows of corn planted in Respondent's vegetable garden. With the assistance of two other individuals, this officer removed approximately thirty marijuana...