Wireman, Matter of
| Decision Date | 14 October 1977 |
| Docket Number | No. 575S122,575S122 |
| Citation | 367 N.E.2d 1368,270 Ind. 344 |
| Parties | In the Matter of Lewis T. WIREMAN. |
| Court | Indiana Supreme Court |
Robert A. Mucker, Lafayette, for respondent.
David B. Hughes, Disciplinary Com'n, Indianapolis, for Supreme Court Disciplinary Com'n.
This is a disciplinary proceeding before this Court on an amended seven-count complaint filed by the Disciplinary Commission pursuant to Admission and Discipline Rule 23, Section 12. A Hearing Officer was appointed; this cause has been heard; and the Hearing Officer has filed his Findings of Fact, Conclusions of Law and Recommendations. Respondent now petitions this Court for review of the findings of the Hearing Officer. Both parties have filed briefs in this cause.
The respondent has submitted numerous challenges to the procedure involved in the trial of this matter and the rulings of the Hearing Officer. These issues will be addressed in their order of presentation set forth in the briefs of the parties.
As his first assertion of error, respondent argues that he was denied due process of law by the Commission's alleged failure to follow Admission and Discipline Rule 23, Section 10(a)(2). The respondent contends that this rule, which affords the opportunity to respond to a grievance, was not followed relative to violations of the Code of Professional Responsibility in that the initial complaint filed in this cause asserted violations of Judicial Canons and did not specifically assert violations of the Code of Professional Responsibility. Thus, respondent concludes that he was denied due process as to the charges of the complaint predicated on violations of the Code of Professional Responsibility.
This Court has recently held that a disciplinary grievance will not be strictly construed. In re Murray (1977), Ind., 362 N.E.2d 128. In the Murray Case, this Court set forth the relationship of the grievance to the complaint as filed by the Disciplinary Commission.
This language, above quoted, has equal application to the present cause. The respondent was advised of the general nature of the charges against him. Accordingly, we find that the purpose of Admission and Discipline Rule 23, Section 10(a)(2) has been met and there has not been a denial of due process.
The respondent next asserts a violation of the 14th Amendment of the United States Constitution by reason of the alleged failure of the Executive Secretary of the Disciplinary Commission to follow the provisions of Admission and Discipline Rule 23, Section 10(b), which provides as follows:
The records in this case demonstrate that within forty-five days of the filing of the grievance, the Executive Secretary gave the following notice to the respondent:
The respondent argues that since there was no apparent finding of "reasonable cause", he was denied due process.
While the letter of notification was not the most artfully worded document and did not specifically dovetail with the provisions of Section 10(b), there is no doubt that the cause was docketed within the forty-five day requirement. The docketing of this matter infers a finding of reasonable cause. Thus, we find no merit in this assertion of error.
As his third assertion of error, the respondent argues that he was further denied due process when a hearing was not conducted within sixty days after a determination of reasonable cause. Respondent asserts that Admission and Discipline Rule 23, Section 13(a), which authorizes the appointed Hearing Officer to conduct a hearing within sixty days, is a jurisdictional requirement; it is respondent's position that the Hearing Officer should have granted his motion to dismiss after the sixty-day period had expired without a hearing.
Due process, as applied to disciplinary proceedings involving attorneys, requires notice of the charges and an opportunity to be heard. In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, reh. den. 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874; In re Stivers (1973), 260 Ind. 120, 292 N.E.2d 804; In re Murray, supra. Beyond these requirements, there is no authority to suggest that the expiration of a time period would establish a constitutional infirmity mandating dismissal of all charges. There may be hypothetical factual situations where this expiration of time destroys the fundamental fairness of the entire disciplinary process; however, there is no evidence in the present case to warrant such determination. Accordingly, this Court now overrules Respondent's Motion to Dismiss and assertions of error predicated on the Hearing Officer's denial of dismissal.
The next series of issues raised by respondent center on the denial of pre-trial discovery. In re Murray, supra, disposes of these issues. The requirements of due process do not require pre-trial discovery. Accordingly, we find no merit in respondent's assertions of error arising from the overruling of respondent's "Motion for Production, Inspection and Copying Documents and Things", the refusal of police officers to answer certain questions during pre-trial depositions, and the refusal of WASK News department reporters to answer questions during pre-trial depositions.
As a fifth general assertion of error, the respondent asserts that it was improper for the Hearing Officer to exclude testimony of news reporters by reason of the Indiana Shield Law (I.C. 34-3-5-1).
This assertion of error stems from an attempt by respondent to elicit testimony from news reporters called as witnesses by the respondent. Examination of the transcript indicates that objection was made to such testimony as being immaterial and confidential under the shield law. The majority of objections were made when reporters were asked if certain matters were discussed with particular individuals. This type of conversation is protected by the shield law.
The transcript further demonstrates that on several occasions WASK News reporters were questioned as to why their course of investigation changed from a news story to a disciplinary matter. We find these questions to be irrelevant to the issue before the Hearing Officer and this Court, to-wit: The substantiation of alleged violations of the Code of Professional Responsibility and the Code of Judicial Conduct and Ethics, as then in effect. Accordingly, we now find that the testimony from which this assertion of error emanates was properly excluded.
Respondent further asserts that he was denied his right to confront his accuser in that the party who filed the initial grievance, J. Michael Piggott, declined to testify under the Indiana Shield Law. Respondent confuses this proceeding with a criminal prosecution. The party signing a grievance is not parallel to the victim who signs a charging affidavit. Within the disciplinary process, the Disciplinary Commission is given the responsibility of making an independent judgment as to the likelihood of misconduct. It is the Disciplinary Commission and not the grievant who files the complaint.
The respondent also asserts that he was improperly denied an opportunity to demonstrate a waiver of the shield law by news reporters. This argument is misdirected. The record demonstrates that respondent sought to develop, through his interrogation of the news media witnesses, that a conspiracy, adverse to the respondent, existed among such individuals. These individuals were called by the respondent and did not testify against him; additionally, respondent does not argue that witnesses presenting evidence against him were involved in such conspiracy. Thus, as the case developed at the hearing level, respondent called witnesses, who had not testified, attempted to develop a conspiracy theory unrelated to adverse witnesses, and was prevented from doing so by the use of the shield law and the rulings of the Hearing Officer. We view the excluded testimony as irrelevant; likewise, whether or not there was a waiver of the shield law is irrelevant.
Several remaining issues may be grouped within the consideration of whether, as a matter of law, the failure of the respondent, a Judge in a City Court, to disqualify himself constitutes a basis for disciplinary action. The respondent argues that, in the cases giving rise to...
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