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Thursday, January 02, 2014

Ind. Courts - "Judge Kimberly Brown’s fate remains up in air"

Updating a long list of ILB entries on the Judge Kimberly Brown disciplinary trial, as well as this most recent post from Dec. 30th, reviewing three earlier removals, Tim Evans from the Indianapolis Star reports in a long story today:

The fate of Marion Superior Judge Kimberly J. Brown is now up to the state Supreme Court. But what punishment she will receive on allegations of judicial misconduct remains unclear.

A public reprimand or suspension without pay would keep her on the bench, and a 2014 re-election bid would remain in reach.

But permanent removal would end her judicial career in Indiana. At least one legal observer expects that outcome, saying her case, involving 46 counts, a late apology and surprising behavior, is in “a category of its own.” * * *

A three-judge “masters” panel appointed by the Supreme Court has called for Brown to be removed from the bench based on conclusions drawn from testimony during a weeklong trial in November. * * *

The few judicial disciplinary cases the state’s top court has taken up in the past decade provide few hints as to what Brown may face.

The sanction ultimately handed down could affect Brown’s ability to seek re-election in 2014. If she is reprimanded or suspended, Brown can still run for re-election. If she is removed by the high court, she cannot.

Since 2004, the Supreme Court has removed only one judge from office. Five other judicial officers facing disciplinary action agreed to resign or retired before the court issued a sanction.

Many judicial disciplinary cases never make it to the stage of a trial before a panel of masters. Twelve of the 17 other cases since 2004 were resolved with agreements between the offending judge and the commission, which were subsequently approved by the Supreme Court.

For the Supreme Court to remove Brown from office would be extreme, said Joel Schumm, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis who has closely followed the case and written about it for The Indiana Law Blog.

Still, Schumm said, he “would not be surprised if the court ordered removal.” The law professor added he believes removal is warranted.

“The masters, all three very accomplished and respected trial judges, sat through the seven-day hearing and entered incredibly detailed and thoughtful findings,” he explained. * * *

“I suspect the two justices who formerly served as trial court judges will give quite a bit of deference to the masters’ report.”

Added Schumm: “The 46 proven allegations of misconduct in the Brown case are more pervasive than in the Hawkins case.”

Schumm also cited another potentially troubling aspect to Brown’s conduct. Something she did after the commission leveled charges against her raises concern about her fitness for office, Schumm said.

“Judge Brown’s refusal to take the oath at her deposition and odd non-explanation of it at the hearing,” he said, “puts her case in a category of its own.”

The judge’s refusal also was noted by the masters in the panel’s 107-page final report issued last week.

“A refusal to take such an oath before providing testimony,” presiding master Taliaferro wrote, “even if the witness has previously taken an oath of office in which he or she has promised to uphold the state and federal Constitutions, can only be viewed as signifying a lack of respect for the judicial process.”

If Brown is only suspended or reprimanded, Schumm said he would not be surprised to see her re-elected — even if she is not slated by the party.

“She is a woman, with a common-sounding name, and will be alphabetically first on the ballot. These things give her a strong advantage when voters are told to vote for eight candidates and most know little or nothing about them,” he explained. “The Democratic party would need to spend quite a bit of money to defeat her.”

Brown was not slated by the Democrat party when she ran and was elected to the bench in 2008.

Candidate filing for the 2014 primary starts Jan. 8 and closes Feb. 7.

The Supreme Court is under no timetable to render a decision in the disciplinary case, and it is unclear if a ruling will come before the filing period ends. As long as the case is pending, she can file as a candidate.

Posted by Marcia Oddi on January 2, 2014 01:08 PM
Posted to Indiana Courts | Schumm - Commentary