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Tuesday, December 20, 2011

Ind. Decisions - "Jeffrey A. Harkin, Judge of Hammond City Court, is hereby suspended from office without pay for a period of sixty (60) days, commencing at 5:00 p.m. CST 7 on Tuesday, December 27, 2011"

The Supreme Court has issued a 7-page, per curiam ruling in a judicial disciplinary action, In re Harkin. The ILB has had several entries about this matter, the most recent from Nov. 6, 2011. From today's opinion:

From 2005 through March 8, 2011, Respondent dismissed the traffic infraction cases of all litigants who attended the Traffic School and paid the applicable fee, and entered default judgment, imposed fines and court costs, and ordered the suspension of driver’s licenses of all litigants who selected Traffic School but failed to complete the class. He did so, however, without any legal authority to do so. Only the prosecuting attorney had authority to establish a deferral program for traffic infractions. See Ind. Code § 34-28-5-1(h). No statute, Supreme Court rule, or other legal precedent authorized Respondent either to establish a traffic infraction deferral program or to discharge traffic infraction cases without a specific request from the prosecuting attorney.

Beginning in 2006, and then again in 2007, 2008, and 2010, the State Board of Accounts (“SBOA”) issued audit reports indicating that the resolution of traffic infraction cases through the Traffic School did not comply with Indiana Code section 34-28-5-5, which pertains to the payment and depositing of court costs. On at least one occasion, Respondent met with a SBOA representative to discuss the issue and express his disagreement with the SBOA’s interpretation of Indiana Code section 34-28-5-5. He did not, however, seek a second opinion from the Indiana Judicial Center or any other judicial resource about whether the Traffic School program was, in fact, violating state law.

On July 26, 2010, Respondent met with executives from the Lake County Prosecutor’s Office. During the meeting, the Lake County Chief Trial Deputy informed Respondent that the Traffic Court program did not comply with Indiana Code section 34-28-5-1(h) and was not otherwise authorized by law, and the other executives voiced their objections to Respondent’s continued use of the Traffic School program. Respondent, however, continued to offer the Traffic School program to eligible litigants for seven more months. He discontinued doing so only after the Commission’s counsel, on March 8, 2011, informed him of the Commission’s belief that Respondent was abusing his authority by diverting litigants’ cases through a de facto deferral program that was not authorized by the county prosecutor.

The Respondent and the Commission agree that by referring traffic infraction litigants to the Traffic School and then dismissing their cases upon their completion of the program without any dismissal request from the prosecutor, Respondent abused his judicial authority, committed conduct prejudicial to the administration of justice, and violated the Code of Judicial Conduct’s provisions that required him: to “comply with the law,” Ind. Judicial Conduct Rule 1.1 (West 2011) (asterisk deleted); to “act at all times in a manner that promotes public confidence in the integrity, independence, and impartiality of the judiciary,” Jud. Cond. R. 1.2 (asterisks deleted); to “uphold and apply the law,” Jud. Cond. R. 2.2; and to “perform judicial and administrative duties competently,” Jud. Cond. R. 2.5. The parties also agree, in mitigation of these violations, that the Hammond City Court had been referring litigants to Traffic School for decades, and previous judges of that court had not been notified of any concerns about the legality of the program from the Lake County Prosecutor’s Office, the SBOA, or any other entity. Further, deputy prosecutors assigned to the Hammond City Court were aware of the court’s Traffic School program and practice but did not voice any objections to it until the meeting on July 26, 2010. Finally, Respondent has taken measures to address some of the personal issues that may have accounted, in part, for his lack of thoroughness in investigating the concerns brought to his attention about the legality of his court’s Traffic School program when they were raised with him. * * *

The parties agree that the appropriate sanction for Respondent’s misconduct is suspension without pay for sixty (60) days. The Court agrees with the parties that under the circumstances of this case, the disposition they propose is an appropriate result. As we stated recently in another matter, “A suspension from office without pay, regardless of duration, is not a minor sanction. Even more than a public reprimand, any such suspension is a significant blemish on a sitting judge's reputation.” Matter of Hawkins, 902 N.E.2d 231, 246 (Ind. 2009).

Posted by Marcia Oddi on December 20, 2011 02:15 PM
Posted to Ind. Sup.Ct. Decisions