State ex rel. Purcell v. Circuit Court of Sullivan County, No. 28658

• Docket Nº: No. 28658
• Citation: 92 N.E.2d 843, 228 Ind. 410
• Case Date: June 13, 1950
• Court: Supreme Court of Indiana

Page 843

92 N.E.2d 843 228 Ind. 410 STATE ex rel. PURCELL, Prosecuting Attorney,
v.
CIRCUIT COURT OF SULLIVAN COUNTY et al. No. 28658. Supreme Court of Indiana. June 13, 1950.

[228 Ind. 412]

Page 844

James Watson, Deputy Atty. Gen., John K. Purcell, Sullivan, for relator.

Clarence R. Martin, Indianapolis, Earl S. Cummings, Sullivan, for respondent

[228 Ind. 413] STARR, Judge.

This is an original action wherein the relator, John K. Purcell, as prosecuting attorney for the 14th Judicial Circuit, is seeking a writ of prohibition against the respondent, Norval K. Harris, as Judge of the Circuit Court of Sullivan County. The relator has also made parties respondent the Circuit Court of Sullivan County and one Earl S. Cummings.

The relator's petition, after showing that he is the prosecuting attorney for said district and said Harris is Judge of said court, alleges that said respondent judge did, on the 20th day of March, 1950, issue on his own motion an order in open court by the terms of which the Clerk of said court was ordered to subpeona the Grand Jury for said county, who had theretofore been duly empaneled, to convene on March 27, 1950, to perform their duties as such grand jurors. Said order contained the following further provision: 'And the court being duly advised now appoints Earl S. Cummings, a reputable attorney of this Bar, as special prosecuting attorney to assist the Grand Jury, for the reason that the regular prosecuting attorney's conduct of his office will be investigated by the Grand Jury by the order of this court'. Said petition further alleges that the said respondent judge entertains a personal bias and animosity towards the relator and that no proceedings or charges of any kind have ever been pending against said relator as a basis to invoke such action of so appointing a special prosecutor, nor has there been any request for such action on the part of the Grand Jury, nor is there or has there ever been a petition to said respondent judge requesting that he make such appointment, nor has the respondent judge ever given notice to the relator that he so intended to make such appointment or given said relator the opportunity to be heard in said matter, but that on the contrary the [228 Ind. 414] action of the said respondent judge was solely on his own motion without any request for the same by the relator or by any other constituted authority. The relator in said petition further alleges that such actions of said respondent judge have resulted, and will continue to result, in interfering with the proper performance by the relator of his official duties, and will tend to result in improperly coercing and interfering with said Grand Jury in its duties in the investigation of any matters relating to the conduct of said relator and in determining in its own discretion whether there has been any misconduct on the part of said relator.

Upon the filing of this petition on March 22, 1950, a temporary writ of prohibition was issued wherein the respondent judge, along with the other respondents, was ordered until further order of this court 'to refrain forthwith from attempting to exercise any further jurisdiction herein, or from in any way enforcing or complying with the said orders of said Circuit Court of Sullivan County, Indiana, and of the said judge thereof; and from attempting in any way to perform any of the official duties of this relator, and from in any way interfering with his performance therewith; and from in any way interfering with, coercing or influencing the Grand Jury of said Sullivan County, Indiana, in the performance of any of its official duties; all until the return of and to this writ and the further order of this court herein.'

Page 845

In due course the said Harris, as Judge, filed his response herein. Omitting all legal conclusions the substantial allegations of fact therein are: That numerous citizens of Sullivan County have complained to him concerning the immoral and licentious conduct of the relator and also concerning relator's criminal conduct of the office of prosecuting attorney, and that respondent 'has judicial knowledge of relator's malicious, [228 Ind. 415] vicious and unlawful conduct of his office as prosecuting attorney'. That his order appointing the said Earl S. Cummings as special prosecutor was not made on Monday, March 20, 1950, but on Wednesday, March 22, 1950. That the relator has been guilty of wilful and corrupt misconduct in his office as prosecuting attorney and has been guilty of extortion as such prosecutor, and has violated the criminal laws of this state as an individual. The respondent admits that he has a personal bias and animosity towards the relator which he alleges 'is only natural after said relator as a tool of unscrupulous politicians, maliciously caused said Harris to be indicted for forgery, embezzlement and issuing fraudulent checks by an illegal Grand Jury, and when said Purcell knew said charges to be false', and that he 'desires an honest, fair and impartial investigation of the official and unofficial conduct of said relator, and that said relator has already discredited, embarrassed and hampered himself by his incompetence as prosecuting attorney and by his immorality and 'Peeping Tom' activities as an individual.'

From the foregoing petition and the response thereto it appears that the respondent judge is now attempting to institute an investigation of relator's official and private conduct merely upon his exparte motion based upon suspicion or rumor and without judicial determination of the facts of disqualification or probable cause for the appointment of a special prosecutor. From all the facts as disclosed it would appear to us that the said respondent judge is not acting judiciously but is attempting to hold an inquisition. Not only is he attempting to be an investigator, but by his own admission he is biased and prejudiced against the relator. Knowing and appreciating this state of mind, it seems to us that the said respondent judge should not attempt to preside over a matter of this [228 Ind. 416] sort involving the relator. Had there been an orderly examination into the question as to whether a special prosecutor was necessary it would seem to us that the first thing that the respondent judge should have done would have been to challenge himself as wholly incompetent to preside over such inquiry due to his prejudice and bias against the relator.

In making the foregoing observation we are aware of the fact that the trial court has the right to appoint a special prosecutor at any time the regular prosecutor becomes incapacitated due to the fact that he is a party to any litigation or if he for any other reason becomes disqualified. The record herein does not disclose such a situation. See State ex rel. Spencer v. Criminal Court of Marion Co., 1938, 214 Ind. 551, 15 N.E.2d 1020, 16 N.E.2d 888.

It is a fact, as disclosed by the response, that the order appointing the said special prosecutor was not made until...