Sekerez, Matter of

• Decision Date: 18 January 1984
• Docket Number: No. 880S357,880S357
• Citation: 458 N.E.2d 229
• Parties: In the Matter of Zarko SEKEREZ.
• Court: Indiana Supreme Court

Page 229

458 N.E.2d 229

In the Matter of Zarko SEKEREZ.

No. 880S357.

Supreme Court of Indiana.

Jan. 18, 1984.

Mark R. Harris, Merrillville, for respondent.

David B. Hughes, Indianapolis, for The Indiana Supreme Court Disciplinary Com'n.

DISCIPLINARY ACTION

PER CURIAM.

This disciplinary matter is before us on a seven-count Verified Complaint for Disciplinary Action filed against the Respondent, Zarko Sekerez, by the Indiana Supreme Court Disciplinary Commission. A Hearing Officer, appointed by this Court, has conducted a hearing pursuant to Admission and Discipline Rule 23 and has submitted his findings of fact. The Respondent now petitions for review of these findings. The Respondent also has filed a Motion for Oral Argument, a Petition for a Trial de Novo, and a Petition for Hearing on Constitutional Challenges. Both parties have submitted briefs in support of their respective positions. Respondent's Motion for Oral Argument is now denied.

At the onset of our review of this case, this Court must address the manner in which the Respondent petitions for review and challenges the findings of the Hearing Officer. Admission and Discipline Rule 23, Section 15, defines the procedure for review by this Court of our Hearing Officer's findings. This provision authorizes a petition for review and requires a party who challenges the factual findings to submit with his petition a record of all of the evidence relating to the challenged factual issue (our emphasis). Upon examination of the pleadings filed by Respondent, it appears to this Court that the Respondent has chosen not to follow this procedure.

Respondent's "Petition for Trial de Novo" and "Petition for Hearing on Constitutional Challenges" are not in a form recognized under our rules. However, in that the issues raised under such pleadings are in the nature of issues generally presented in a petition for review, they will be so considered.

On the other hand, the record of evidence presented by the Respondent is totally inadequate. Respondent, in support of his petition for review, filed only a transcript of the testimony of his witnesses. In overruling the Disciplinary Commission's objection and request for an order from this Court directing the Respondent to supplement the record to present all evidence on the challenged issues, this Court noted that

"... the findings of the Hearing Officer are a sufficient basis for the imposition of discipline and that it is incumbent on the petitioning party to present a sufficient record to countermand the significance of the Hearing Officer's findings. If the record submitted is insufficient, the petitioning party must stand on it; if the petitioning party attempts to practice obfuscation, he must accept the consequences."

This Court finds that a transcript containing only one party's case in chief does not constitute all of the evidence as required under the above noted rule.

Before reviewing the specific charges, several preliminary issues raised by Respondent's pleadings must be considered. In his Petition for Trial de Novo, Respondent asserts that he did not receive a fair hearing; he contends that:

1) The Hearing Officer was biased and prejudiced against the Respondent;

2) The findings of the Hearing Officer were based on perjured testimony; and 3) The Hearing Officer did not determine whether misconduct was proved by a preponderance of the evidence as required by Admission and Discipline rule 23, Section 14(d).

In support of Respondent's first contention, Respondent sets forth ten alleged grounds. Respondent generally avers that the Hearing Officer took an extended length of time to adopt, in toto, the proposed findings submitted by the Disciplinary Commission; the Respondent asserts that all controverted testimony was found in favor of the Disciplinary Commission and that several of the findings were not supported by the evidence. And the Respondent objects to several rulings during the course of the hearing and the manner in which the hearing was conducted.

The adoption by the Hearing Officer of one party's proposed findings does not constitute grounds for challenge. The parties have the same opportunity to present evidence and argue the merits of their respective positions; it is not error to be persuaded by one of the parties. In re Zinman, (1983) Ind., 450 N.E.2d 1000. Nor does an adverse ruling constitute error. In re Kesler, (1979) 272 Ind. 161, 397 N.E.2d 574, cert. denied 449 U.S. 829, 101 S.Ct. 96, 66 L.Ed.2d 34.

To establish error predicated on the alleged bias and prejudice of a Hearing Officer (or judge), Respondent must demonstrate by a valid and complete record that the alleged bias or prejudice stems from an extra-judicial source and results in an opinion on the merits on some basis other than what was learned through participation in the case. United States v. Grinnell Corporation, (1966) 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778; United States v. English (7th Cir.), (1974) 501 F.2d 1254, cert. denied; Hubbard v. U.S., 419 U.S. 1114, 95 S.Ct. 791, 42 L.Ed.2d 811. Reviewing that which has been filed in this cause, this Court finds that Respondent has not demonstrated bias and prejudice on the part of the Hearing Officer.

As a second contention to his Petition for Trial de Novo, Respondent further argues that the Hearing Officer based his findings on allegedly perjured testimony. Though such a challenge goes to the credibility of witnesses and is to be properly resolved in this Court's ultimate review of the facts, in that the Respondent is contending these adverse rulings may have a cumulative or corroborative effect, we would be inclined to consider it at this juncture. However, as with many of Respondent's other contentions, we find that he had failed to present an adequate record from which this Court can make an informed decision.

As his third contention, Respondent asserts that he is entitled to a new hearing by reason of the Hearing Officer's failure to rule within thirty days as required under our rules. This Court has previously held that the expiration of the thirty day time period under Admission and Discipline Rule 23, Section 14(d), without further showing of impairment, does not establish a constitutional infirmity In re Zinman, Supra., In re Wireman, (1977) 270 Ind. 344, 367 N.E.2d 1368, cert. denied 436 U.S. 904, 98 S.Ct. 2234, 56 L.Ed.2d 402.

Respondent argues that the nine month delay in the Hearing Officer's ruling made appeal more difficult and diminished the recall of events. The proceedings were reported and a complete transcript was available. An adequate record at the time of hearing would have preserved any issue the Respondent deemed worthy of review by this Court. There has been no showing that the delay in ruling destroyed the fundamental fairness of the disciplinary process. As this Court noted in its prior order, "if the record submitted is insufficient, the petitioning party must stand on it ...".

In view of the above considerations, this Court denies the relief sought in Respondent's Petition for Trial de Novo.

In view of the above considerations, this Court denies the relief sought in Respondent's Petition for Trial de Novo.

In his Petition for Hearing on Constitutional Challenges, the Respondent contends that the Hearing Officer erroneously ruled that he could not hear Respondent's challenges and did not give the Respondent an opportunity to present evidence relating to his constitutional challenges. In support of this contention the Respondent has submitted a single page excerpt of the transcript of the hearing, which reads as follows:

MR. SEKEREZ: My constitutional issues, Your Honor.

THE COURT: Okay. I'm trying to figure--I don't know what bearing this would have on that cause.

MR. HUGHES: The record is full of constitutional issues. He's filed a motion to stay, he's filed them in the Federal Court, he's filed them in the State Supreme Court that Your Honor has no jurisdiction to determine any constitutional issue, and he has raised them in his pleadings, in his answer, in his affirmative defense, and I think that any further expounding on those, would be superfluous to the record.

THE COURT: I can't--I think a record has been made of that fact, and I don't see any--I can't make a decision one way or another on that issue.

With that, I'm going to go back again to the point. Mr. Hughes, do you want to make an opening statement at all?

MR. SEKEREZ: Is it my understanding that Your Honor is not going to adjudicate on the issues?

THE COURT: What? The constitutional issues?

MR. SEKEREZ: Yes, sir.

THE COURT: I don't think I have authority to make that kind of a ruling on those issues. I've made a ruling of the fact that I do not have authority to do that.

Predicated on the record submitted, Respondent now argues that he was not afforded due process at the hearing stage and accordingly should be allowed a further hearing to present his evidence and make his constitutional arguments. He has presented no authority defining such due process entitlement. ¹ Other than the above cited excerpt, Respondent has demonstrated no offer of excluded evidence at the trial stage nor advanced an argument as to why the presentation of constitutional issues to this Court would be inadequate. This Court cannot suppose a record and argument.

In light of these considerations, Respondent's request for a new hearing is denied. However, as previously noted, the constitutional issues he raises in this pleading will be treated as if properly raised in a Petition for Review.

As a final preliminary matter, we note that the Respondent also urges, in a single sentence, that Admission and Discipline Rule 23, Section 14(f), which provides for the "preponderance of evidence" standard of proof for disciplinary cases, is in violation of the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States. The Respondent makes no attempt to substantiate...