State ex rel. Latham v. Spencer Circuit Court

Decision Date16 December 1963
Docket NumberNo. 30358,30358
Citation194 N.E.2d 606,244 Ind. 552
PartiesSTATE of Indiana on the Relation of Martha LATHAM, Relator, v. The SPENCER CIRCUIT COURT, J. Leslie Stuteville, Judge of the Spencer Circuit Court, Respondents.
CourtIndiana Supreme Court

Ralph M. Koehne, Evansville, for appellant.

O. H. Roberts, Jr., Evansville, for appellee.

LANDIS, Chief Justice.

This is an original action for writ of mandate to compel respondent court to relieve one O. H. Roberts, Jr., of his duties as prosecuting attorney in a certain statutory proceeding brought under Burns' § 10-2323 (1956 Repl.), 1 and to appoint one Ralph M. Koehne as special prosecuting attorney therein, he to serve without compensation from public funds. We issued the alternative writ.

The cause pending in respondent court below is an action under the foregoing statute to recover gambling losses of $35,000 lost by Eugene Latham, Jr., in a game known as 'dice'. The suit was brought on behalf of the wife and five minor children of the said Lathams and is entitled State of Indiana ex rel. Martha Latham v. Charles W. Lee, Charles W. Lee, Jr. The action was filed in the Vanderburgh Circuit Court by the above prosecuting attorney, and was taken to respondent court on change of venue.

In the court below, relator filed pursuant to Rule 2-35 of this Court, a verified motion alleging in substance that said prosecuting attorney has demonstrated extreme hostillity to and prejudice against relator's interest in the within action in that he delayed and impeded filing the action in the first instance, that he has humiliated and embarrassed relator during conferences with her, that he has since refused to communicate with relator, that he allowed a change of venue of said action to be taken from Vanderburgh County to Spencer County without conferring with or advising relator when he knew or reasonably could have known the defendant to such action had an undue influence over the inhabitants of said Spencer County, Indiana. That said prosecuting attorney's hostility and prejudice against relator's interest renders said official incapable of properly preparing said action for trial and prosecuting the same. Relator's verified motion was supported by various exhibits. For all of which reasons, relator moved the court to reconsider, set aside and strike its previous order sustaining the State of Indiana's objections to relator's petition for the appointment of counsel to prosecute said action.

No pleading was filed in denial of these allegations although the prosecuting attorney filed objections alleging among other things that the laws of Indiana do not permit the appointment of a special prosecuting attorney in such cases, at least not unless requested by the prosecuting attorney, and that no such request had been made.

The office of prosecuting attorney is a constitutional office, § 11 of Art. 7 of the Constitution of Indiana, providing:

'There shall be elected in each judicial circuit by the voters thereof a prosecuting attorney, who shall hold his office for four years * * *.'

Section 12 of Art. 7 provides:

'Any Judge or Prosecuting Attorney, who shall have been convicted of corruption or other high crime, may, on information in the name of the State, be removed from office by the Supreme Court, or in such other manner as may be prescribed by law.'

The Constitution does not, however, prescribe the duties of prosecuting attorneys but their duties in general terms are prescribed by statute. State ex rel. v. Ellis, (1916), 184 Ind. 307, 112 N.E. 98. And while prosecuting attorneys are concerned primarily with representing the State of Indiana in criminal matters, there are many statutes requiring them to perform duties also in proceedings of a civil nature as in the case at bar. See: Burns' §§ 2-229, 3-1212, 3-2013, 10-2323, 28-312, 23-120. 2

A prosecuting attorney is a judicial officer (The State v. Henning, 1870, 33 Ind. 189), and an officer of the court (People ex rel. Hughes v. May, 1855, 3 Mich. 598, 605), and while his official duties comprehend a wider field than those of an attorney solely, his conduct in the trial of causes is subject to fully as high standards and scrutiny as is that of attorneys generally. The preservation of proper standards of conduct by attorneys and prosecuting attorneys as to matters pending in the court is a proper subject for the courts, which are charged with the control of the judicial branch of the government.

In the case before us the only evidence introduced before the lower court was in affidavit form. Relator's verified motion alleged hostility and prejudice against her interest on the part of the prosecuting attorney in a number of resepcts as heretofore set forth. The prosecuting attorney has not denied such allegations before respondent court. We have heretofore held that when affidavits are contemplated in proceedings before the lower court and the matters averred in such proponent's affidavits are not denied or controverted by the opposing party, the facts stated in said affidavit may be deemed to be admitted for the purpose of the court's ruling upon such matter. Key v. State (1956), 235 Ind. 172, 132 N.E.2d 143; Hood, by his next Friend, Hood v. Pearson (1879), 67 Ind. 368.

It is elementary that an attorney cannot properly represent a client in a law suit over the latter's objection when the attorney maintains an antagonistic attitude or hostile interest toward such client. See: 7 C.J.S. Attorney and Client §§ 125, 126 p. 957; 7 Am.Jur.2d, Attorneys at Law, §§ 93, 94, p. 105. For cases in which a prosecuting attorney has been held disqualified to act because of interest or conflict of interest in the case, See: 27 C.J.S. District and Prosecuting Attorneys 12(6), p. 663.

In our judgment the admission of hostility and antagonism in interest by failure to deny relator's allegations in the case before us had the effect of rendering disqualified the regular prosecuting attorney in such proceeding and placing upon respondent court the mandatory duty to appoint a special prosecutor in such case when such matter was brought before it in proper proceedings by relator. The decisions of this state abundantly recognize the duty of the trial court to appoint a special prosecuting attorney in event of the disqualification of the regular prosecuting attorney. See: State ex rel. v. Ellis (1916), supra, 184 Ind. 307, 112 N.E. 98, and cases therein cited. See also: Perfect v. State (1926), 197 Ind. 401, 141 N.E. 52.

Respondent has contended without merit that the question of the prosecuting attorney's disqualification cannot be raised by relatrix as she is not a party to the action, the only parties being the State of Indiana as plaintiff, and the defendant. This argument is tantamount to saying that the question of the prosecuting attorney's disqualification in having a hostile and prejudicial interest toward the maintenance of the action in the lower court could only be raised by the State itself, which is represented in the case by none other than the prosecuting attorney. Or in other words, the proscuting attorney would have to raise the question of his own disqualification for bias or hostile interest, or it could not be raised. The authorities are squarely against respondents' contention in this respect, and decisions of this state have considered the question of the prosecutor's disqualification when raised by such non-parties as the grand jury, 3 and the court itself on its own motion. 4 No plausible reason has been advanced why the question could not be raised by relatrix for whose benefit the instant action was brought. 5

This is not a case where lack of intellect, learning, or moral courage can be said to have been the cause of the failure of the prosecuting attorney to act, but on the contrary, the lower court here was presented with a factual situation which from the record showed the prosecuting attorney's inability properly to conduct the proceeding was due to antagonism and hostile interest toward relatrix for whose benefit the action was brought. To hold that the lower court, under such facts, was under no clear duty to act to relieve the prosecuting attorney of his duties and appoint a special prosecutor would in our judgment amount to an abdication from judicial responsibility in a case where such attorney has in effect conceded his incapacity to proceed. And in such a case authorities of this state have recognized that the responsibility of the trial court to appoint a special prosecutor is not dependent upon the desires of the prosecuting attorney, but a special prosecutor should be appointed where there is a judicial determination of the fact of disqualification after an opportunity for the regular prosecutor to be heard, and this would necessarily include cases in which the regular prosecuting attorney has in effect admitted disqualification or incapacity.

In fact, the situation here presented is not unlike that of a judge who admits bias, prejudice, or interest toward one side in litigation before him, and who, being thereby incapacitated, is under a duty to disqualify himself in such a case. 48 C.J.S. Judges § 93, p. 1079; 30A Am.Jur., Judges, § 206, p. 107.

As heretofore indicated, in the case before us, the record reveals this is a case of admitted antagonism and hostile interest with resultant disqualification of the prosecuting attorney.

The alternative writ heretofore issued is modified to delete therefrom the portion directing respondent court '* * * to appoint Ralph M. Koehne as special prosecuting attorney, he to serve without fee or compensation from public funds * * *' in the cause below and to substitute in lieu thereof that respondent court is directed '* * * to appoint a special prosecuting attorney in said cause,' and the alternative writ as so modified is now made permanent.


JACKSON, J., dissents with opinion.

JACKSON, Judge...

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