In Re Danikolas

ATTORNEYS FOR HON. JUDGE ATTORNEYS FOR THE COMMISSION ON
JAMES DANIKOLAS JUDICIAL QUALIFICATIONS

Andrew Giorgi Meg W. Babcock
Crown Point, Indiana James Maguire
Stanley W. Jablonski Indianapolis, Indiana
Merrillville, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court
_________________________________

No. 45S00-0403-JD-126

IN THE MATTER OF THE HONORABLE
JAMES DANIKOLAS, JUDGE OF THE LAKE
SUPERIOR COURT, CIVIL DIVISION 3

_________________________________

JUDICIAL DISCIPLINARY ACTION
_________________________________

December 6, 2005

Per Curiam.

The Indiana Commission on Judicial Qualifications (“Commission”) has filed a
disciplinary action in this Court against the Respondent, the Honorable James Danikolas, Judge
of the Lake Superior Court, Civil Division 3 (“Judge Danikolas”). Article 7, Section 4 of the
Indiana Constitution and Indiana Admission and Discipline Rule 25 give this Court original
jurisdiction over this matter.

The Commission charged Judge Danikolas with violating Canons 1, 2, 2(B), 3(B)(2), and
3(C)(1) of the Code of Judicial Conduct by discharging Kris Costa Sakelaris (“Magistrate
Sakelaris”) from employment as a Lake Superior Court Magistrate in retaliation for testimony
she provided during a previous disciplinary matter brought against Judge Danikolas. The present
matter was tried before three Indiana trial court judges appointed to serve as masters in this
proceeding. 1 See Ind. Admission & Discipline Rule 25(VIII)(I). Following the trial, the masters
filed their “Report of Findings of Fact, Conclusions of Law, and Recommendation” (hereinafter
“Masters’ Report”) with this Court, as provided by Admission and Discipline Rule
25(VIII)(N)(1). Thereafter, the Commission filed its Recommendation; Judge Danikolas filed a
Verified Petition for Review, Response to the Commission’s Recommendation, and Brief; and
the Commission filed a Reply.
The matter has been tried, fully briefed, and reviewed by this Court. Having considered
the evidence and submissions of the parties, along with the Masters’ Report, we concur with the
masters that the Commission has proven by clear and convincing evidence that Judge Danikolas
committed judicial misconduct. Further, we concur in and adopt the masters’ recommendation
that Judge Danikolas be suspended for sixty days without pay.

Factual Background

The instant case traces its beginning to 2002 and 2003, during which the Commission
investigated and prosecuted a judicial disciplinary proceeding alleging that Judge Danikolas
entered an ex parte order in a marital dissolution case. The Lake Superior Court had dissolved
the marriage of J.D. (“husband”) and M.D. (“wife”) in 2000, at which time husband owed
$88,400 in spousal maintenance and child support. The court reduced this amount to a judgment.

Wife eventually initiated proceedings supplemental, saying husband had paid nothing on
the judgment. Magistrate Sakelaris conducted a hearing in June 2000, after which she ordered
husband to provide wife’s lawyer with documentation about income tax returns, an insurance
policy, and debt on a vehicle. She also ordered him to begin making payments of $300 per
month. Judge Danikolas counter-signed the order. See generally In re Danikolas, 783 N.E.2d
687 (Ind. 2003) (hereinafter “Danikolas I”).

1
The masters in this matter were the Honorable Michael P. Scopelitis, Judge of the St. Joseph
Superior Court; the Honorable Lynn Murray, Judge of the Howard Circuit Court; and the Honorable
David A. Shaheed, Judge of the Marion Superior Court. We express our appreciation and gratitude to
these judges for their commendable service in this matter.

2
 Several months later, wife sought a contempt citation, alleging that husband had neither
provided any of the financial information nor paid the monthly amounts ordered. On January 31,
2001, Magistrate Sakelaris heard evidence and arguments by counsel for both parties on these
claims. She found husband in contempt for non-payment and for violating the other parts of the
earlier order. She held him in contempt and ordered him incarcerated, subject to an escrow
bond. Judge Danikolas counter-signed this order as well.

Five days later, Judge Danikolas signed a form order countermanding the contempt order.
As the judge later agreed, someone in husband’s attorney’s office supplied him with information
about the case and faxed to the court the release order. He signed it without listening to any
tapes or reviewing any transcripts of the trial and without notifying wife’s lawyer or giving her
lawyer a chance to respond. 2

It was this ex parte action that prompted the disciplinary complaint in Danikolas I. Judge
Danikolas’s attorney, with the judge present, deposed Magistrate Sakelaris for use in the
disciplinary proceeding that led to Danikolas I. During the deposition, conducted on December
20, 2002, Judge Danikolas’s counsel repeatedly sought from Magistrate Sakelaris her admission
that the contempt order had been improperly entered in light of our decision in Cowart v. White,
711 N.E.2d 523, on reh’g, 716 N.E.2d 401 (Ind. 1999). We had observed in Cowart that
“[m]any cases state that contempt may not be used to enforce a decree ordering one party to pay
the other a fixed sum of money.” Id. at 531.

The initial purpose of this line of questioning, Judge Danikolas acknowledged, was to
provide justification for his decision to enter the ex parte order reversing the contempt.
Magistrate Sakelaris, however, would not provide the desired admission and ultimately stated
she did not think, even in light of the Cowart opinion shown to her, that she would have ruled
differently. At some point in the deposition, Judge Danikolas’s attorney threw up his hands and
Judge Danikolas left the room. Outside the room, Judge Danikolas angrily commented to

2
Judge Danikolas made these factual stipulations in a Statement of Circumstances and
Conditional Agreement for Discipline tendered to this Court in Danikolas I. See id. at 688.

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Magistrate Sakelaris’s court reporter, inter alia, “Doesn’t [Magistrate Sakelaris] realize who her
boss is? Doesn’t she realize who she works for?”

Whatever Judge Danikolas thought he knew on the day he set aside the contempt he
knew only on the basis of unsworn information supplied by the losing party’s law firm,
information acted upon without affording the party who had won at trial even notice it was
occurring much less a chance to be heard. Whether the law and the facts proven in the
evidentiary hearing before Magistrate Sakelaris supported a finding of contempt was not at the
heart of Danikolas I or of the current judicial disciplinary proceeding. 3 The masters put it this
way:
Whether or not Ms. Sakelaris’ January 31, 2001 order violated Cowart or
any other law was neither relevant to Judge Danikolas’ prior disciplinary
proceeding nor is it relevant to this one. Even if Ms. Sakelaris’ order was illegal,
it could not justify the ex parte communication and failure to notify the opposing
party that occurred. The validity of that order is not relevant to this proceeding
because it has nothing to do with the reason Judge Danikolas fired Ms. Sakelaris.
Judge Danikolas did not fire Ms. Sakelaris because she entered that order or
because it may or may not have reflected on her knowledge of the law but
because she would not say what his attorneys wanted her to say during her
deposition. In retaliation for her perceived disloyalty and her failure to “fall on

3
Now, as then, Judge Danikolas has asserted strongly that he was right to free husband, based on
Cowart. Of course, our opinion in Cowart cited as authority the earlier decision in Pettit v. Pettit, 626
N.E.2d 444 (Ind. 1993), in which we held that contempt was available on child support arrearages
reduced to judgment, “at least in respect of unemancipated children,” and declared that whether it was
available to collect arrearages after emancipation was one on which we “render no opinion.” Id. at 446
n.3. Depending on the pleadings, the case history, and the evidence, there are a variety of grounds in
which contempt and incarceration may be legally appropriate, such as, to offer one hypothetical, being
ordered to pay in proceedings supplemental, having plenty of money to pay, and refusing to do so. We do
not know now what the evidence was about husband’s ability to pay (not to mention his refusal to provide
the various documents ordered), and neither did Judge Danikolas on the day he set aside the order entered
at the close of the contempt hearing.

4
 her sword” for the judge, he fired her and then made up fallacious excuses to
cover up the real reason for her termination.

(Masters’ Rep. at 32, Finding of Fact No. 158.)

Judge Danikolas testified in this case that at the point he left the Sakelaris deposition and
spoke to Magistrate Sakelaris’s court reporter, he was “concerned that [he] had an employee who
didn’t know the law.” (Comm’n Exh. 1, p. 55, ll. 17-19.) The three masters who heard the
evidence for us specifically concluded that his comments were inconsistent with a concern that
she did not know the law and rather were consistent with “a concern that she had not adequately
supported his defense.” (Masters’ Rep. at 8, Finding of Fact No. 37.) As the masters further
found, “Judge Danikolas’[s] subsequent conduct and activities relating to Ms. Sakelaris were as a
result of Judge Danikolas’ anger and frustration with Ms. Sakelaris’ failure to provide helpful
testimony.” (Id. at 31, Finding of Fact No. 155.)

Judge Danikolas’s actions after the deposition support the masters’ conclusions. Judge
Danikolas never spoke to Magistrate Sakelaris about any problems or issues he had with the
performance of her duties generally, with her statements during the deposition specifically, or
any concern he had about his ability to trust the legal substance of her orders. He also did not
curtail her judicial duties in any way. Instead, on February 12, 2003, eight weeks after the
deposition, he assigned all scheduled Civil Division 3 jury trials to Magistrate Sakelaris, which
amounted to approximately 20-30 scheduled trials. The following day, Magistrate Sakelaris
responded to Judge Danikolas in writing that she “[had] no problem with the reassignment of the
jury trials.” Then, on May 1, 2003, without any warning or explanation, Judge Danikolas
notified Magistrate Sakelaris that she would be discharged effective May 2, 2003.

Sometime after the discharge, Attorney Michael Davis saw Judge Danikolas in the
courthouse and asked what had happened to Magistrate Sakelaris. According to Mr. Davis,
Judge Danikolas stated something to the effect of, “You’ve got to have people who are loyal to
you, [people] you trust.” Judge Danikolas did not mention anything to Attorney Davis about
losing confidence in Magistrate Sakelaris’s legal abilities or competence as a magistrate.

5
 On June 7, 2003, Magistrate Sakelaris filed with the Commission a request for
investigation against Judge Danikolas, alleging Judge Danikolas had discharged her in retaliation
for her deposition testimony in Danikolas I. On June 27, 2003, the Commission sent Judge
Danikolas a Notice of Investigation in which the Commission asked Judge Danikolas, inter alia,
to provide every basis for his decision to discharge Magistrate Sakelaris. Judge Danikolas
responded that he discharged her because “he did not have confidence in her ability to perform
the tasks required.” Specifically, he stated that following Magistrate Sakelaris’s deposition, he
“determined that he could no longer counter sign [sic] Magistrate Sakelaris’[s] orders without
reservation” because he could not “conduct his hearings and monitor her hearings in order to
make sure that he is counter-signing [sic] a legally correct order.”

On March 16, 2004, the Commission filed formal disciplinary charges against Judge
Danikolas, alleging he violated the Code of Judicial Conduct by discharging Magistrate Sakelaris
in retaliation for her providing truthful but unhelpful deposition testimony in Danikolas I.
During the discovery phase of the present case, Judge Danikolas answered interrogatories under
oath. One asked him to state without exception each reason for discharging Magistrate Sakelaris.
Unlike his response to the same question posed by the Commission on June 27, 2003, this time
he listed numerous reasons: (1) Her initial insistence on an employment contract; (2) Her initial
refusal to accept assignment of non-domestic relations cases, and subsequent recusals based on
alleged knowledge of the parties; (3) Her attendance at local seminars as a representative of the
court without Judge Danikolas’s knowledge; (4) Her use of the phrase “my court” when speaking
in public; (5) Her lack of experience in handling jury trials; (6) Her “operat[ing] her court as if it
was separate from [Civil Division] 3 and keeping statistics that were not shared with anyone”;
(7) Her deposition, in which she “showed that she was unfamiliar with the collection process”
and refused to concede, in the face of applicable precedent, that her “her actions were contrary to
law”; and (8) Her repeated failure to set cases at a time certain per his instructions, rather than
setting them all at the same time. Judge Danikolas also testified, in an answer to an
interrogatory, that he decided to discharge Magistrate Sakelaris “[s]hortly after listening to her
deposition on December 20, 2002.”

6
 At the hearing of this matter, Judge Danikolas essentially repeated these same alleged
reasons for discharging Magistrate Sakelaris. His explanation for not providing all of these
discharge bases when initially asked by the Commission to do so in June 2003 was, “Life makes
it very difficult with coming up with everything, you know.”

Findings With Regard To The Charged Misconduct

The masters, after reviewing the evidence and the arguments of counsel, found Judge
Danikolas’s stated reasons for discharging Magistrate Sakelaris were pretexts to cover up the real
reason for her discharge, namely her “perceived disloyalty and her failure to ‘fall on her sword’
for the judge” during her deposition in Danikolas I. (See Masters’ Rep. at 32, Finding of Fact
No. 158.) We concur in their findings. In doing so, we note that in judicial discipline cases, we
sit not as a court of appeal but rather as the court of original (and final) jurisdiction. See Ind.
Const. art. 7, § 4; Admis. Disc. R. 25(I)(A). Therefore, we do not formally employ any
deferential appellate “standard of review” to the masters’ findings and conclusions and instead
review them de novo. See Admis. Disc. R. 25(VIII)(P)(2). However, in cases involving
conflicting testimony and credibility assessments, the masters, like a trial court judge, are best
positioned to assess the demeanor of witnesses and judge their credibility. Accordingly, in such
cases we give special weight to the masters’ findings, particularly when their findings are
unanimous.

The heart of the present case turns on what truly motivated Judge Danikolas to discharge
Magistrate Sakelaris. This determination necessarily involves significant credibility assessments
by the masters concerning what Judge Danikolas did and did not say, did and did not do, and
why. Accordingly, we review their findings and conclusions, which were unanimous, with their
unique vantage point in mind.

First, the masters found clear and convincing evidence that Judge Danikolas harbored
retaliatory animus toward Magistrate Sakelaris from her failure to “fall on her sword” during the
deposition. Specifically, he admitted the purpose of the deposition questioning was to provide
justification in the disciplinary case against him for his decision to enter an ex parte order. When

7
Magistrate Sakelaris did not provide that testimony, he left the deposition angrily stating to
Magistrate Sakelaris’s court reporter, “Doesn’t [Magistrate Sakelaris] realize who her boss is?
Doesn’t she realize who she works for?” He admitted that the decision to discharge her was
made shortly after the conclusion of the deposition, even though he did not actually discharge her
until over four months later. Further, sometime after Magistrate Sakelaris’s discharge he told a
disinterested attorney something to the effect that he had discharged her because “[y]ou’ve got to
have people who are loyal to you, [people] you trust.” From this evidence, we concur with the
masters that Judge Danikolas harbored retaliatory animus toward Magistrate Sakelaris due to her
perceived disloyalty exemplified by her failure to provide mitigating evidence for his defense in
Danikolas I, and that this animus motivated his discharge decision.

Second, the masters found clear and convincing evidence that Judge Danikolas, in
responding to the allegations against him, provided false non-retaliatory reasons for the
discharge to cover up his retaliatory motive. Our review of the evidence confirms the masters’
findings of pretext.

We note that Judge Danikolas provided “shifting” reasons for Magistrate Sakelaris’s
discharge. When asked by the Commission just a few weeks after the discharge to “[p]rovide
every basis” for the discharge decision, Judge Danikolas mentioned only his alleged loss of
confidence in her legal and judicial abilities that resulted from the December 20, 2002
deposition. Presumably, this articulation was made during the time period when the reasons for
her discharge would have been freshest in his mind. Over a year later, after the commencement
of formal proceedings against him, he was asked in an interrogatory to “[s]tate without exception
each of [his] reasons for terminating Ms. Sakelaris.” This time, however, he produced a litany of
alleged grievances against Magistrate Sakelaris that purportedly motivated the decision. His
only excuse for the discrepancy between the two recitations was that “[l]ife makes it very
difficult with coming up with everything, you know.” An employer’s shifting reasons for a
discharge decision can constitute circumstantial evidence of pretext. See, e.g., Cleveland v.
Home Shopping Network, 369 F.3d 1189, 1194-95 (11th Cir. 2004); Young v. Warner-Jenkinson
Co., 152 F.3d 1018, 1023 (8th Cir. 1998); Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160,
1167, amended on denial of reh’g, 97 F.3d 833 (6th Cir. 1996). We find such circumstantial

8
evidence to exist here, particularly when the “laundry list” of alleged grievances comes in the
second, chronologically distant recitation, rather than in the first, relatively contemporaneous
recitation.

We also find the masters’ exhaustive, detailed review of each of Judge Danikolas’s
alleged discharge reasons to be persuasive, showing those reasons either had no basis in fact; or,
although true, really did not motivate the discharge because they were relatively benign, never
mentioned to Magistrate Sakelaris as points in need of correction, and either happened long
before her discharge and never resurfaced again or happened closer in time but were
affirmatively resolved before the discharge decision was made. See Reeves v. Sanderson
Plumbing Prods. Inc., 530 U.S. 133, 147 (2000) (noting that false reasons for an adverse
employment action create a reasonable inference that the employer is dissembling to cover up an
improper discharge motive); Dale v. J.G. Bowers, Inc., 709 N.E.2d 366, 369 (Ind. Ct. App. 1999)
(stating pretext is demonstrated when the alleged reasons offered by the employer either have no
basis in fact or are found not to be the actual reasons for the discharge). We will not restate the
masters’ specific findings as to each alleged reason here, but instead state that our own analysis
of the record evidence confirmed what the masters found.

Conclusions And Imposition Of Sanction

A judicial officer may be disciplined for, among other things, “willful misconduct in
office,” “conduct prejudicial to the administration of justice,” and “violat[ing] the Code of
Judicial Conduct.” Admis. Disc. R. 25(III)(A). With regard to the latter, the Code of Judicial
Conduct states that “[a] judge should participate in establishing, maintaining and enforcing high
standards of conduct, and shall personally observe those standards in order to preserve the
integrity and independence of the judiciary.” Ind. Judicial Conduct Canon 1. It also requires
judges to “respect and comply with the law and act in a manner that promotes public confidence
in the integrity and impartiality of the judiciary.” Jud. Canon 2(A).

Because clear and convincing evidence demonstrates Judge Danikolas discharged
Magistrate Sakelaris because of her perceived disloyalty in failing to support the defense the

9
judge had chosen for himself in Danikolas I, we necessarily also conclude that Judge Danikolas
knowingly provided “fallacious excuses,” (Masters’ Rep. at 32, Finding of Fact No. 158), to the
Commission and under oath for Magistrate Sakelaris’s discharge. Retaliatory discharge and
lying to the Commission and under oath constitute willful misconduct and conduct prejudicial to
the administration of justice, and violate Canons 1 and 2(A) of the Code of Judicial Conduct.

Specifically, Judge Danikolas’s retaliatory discharge of Magistrate Sakelaris constitutes
willful misconduct and an abuse of the power of his judicial office to advance a private vendetta,
and is prejudicial to the administration of justice. As we noted in In re Boles, 555 N.E.2d 1284,
1288 (Ind. 1990), “The use of judicial power as an instrument of retaliation is a serious violation
of the Code of Judicial Conduct.” See also In re Buchanan, 669 P.2d 1248 (Wash. 1983)
(holding judge violated, inter alia, Judicial Canons 1 and 2(A) by discharging court employees in
retaliation for their participation in the Washington Judicial Conduct Commission’s case against
the judge).

Further, Judge Danikolas’s providing “fallacious excuses” for Magistrate Sakelaris’s
discharge to the Commission and under oath is prejudicial to the administration of justice,
impairs public confidence in the integrity of the judiciary, and constitutes a failure to cooperate
with the Commission in the investigation and prosecution of Magistrate Sakelaris’s complaint.
When a judge prevaricates in a case against him to save his own skin, he impairs his credibility
to pass judgment on those who do likewise in cases over which he presides, thereby eroding
public confidence in him specifically and in the judiciary generally.

Like many states, Indiana is an employment at will state in which employers may
terminate employees without cause, so long as the discharge does not rest on an illegal ground,
like race. The Code of Judicial Conduct makes clear that judges are held to a higher standard of
conduct. Judge Danikolas’s responsibility under the Code does not rise or fall on whether
Magistrate Sakelaris succeeds or fails in her civil litigation against Judge Danikolas. “The
standard is the [C]ode and it is the particular conduct, not the outcome of the litigation, which
determines whether or not there is a violation.” In re Wireman, 270 Ind. 344, 351, 367 N.E.2d
1368, 1372 (1977).

10
 “Upon finding judicial misconduct, this Court may impose a variety of sanctions . . . .”
See In re Kouros, 816 N.E.2d 21, 29 (Ind. 2004); Admis. Disc. R. 25(IV). The masters have
recommended Judge Danikolas be suspended from office without pay for a period of sixty (60)
days.

In considering an appropriate sanction, we have weighed the damage done to public trust
and confidence in the judiciary by Judge Danikolas’s use of the power of his office to retaliate
against an employee who did nothing but, as the masters found, testify truthfully in a judicial
disciplinary proceeding. On the other hand, we have taken into account and given weight to
Judge Danikolas’s long career of public service and to the multiple occasions on which he has
added constructively to the Indiana judiciary. Having considered both the gravity of the
misconduct and the mitigation represented by Judge Danikolas’s service, we adopt the masters’
recommendation as to the sanction to be imposed.

Accordingly, the Respondent herein, James Danikolas, Judge of the Lake Superior Court,
is suspended from that office without pay for a period of sixty (60) days. The suspension will go
into effect at a date to be decided in consultation among Respondent, Counsel to the
Commission, and the Executive Director of State Court Administration, but must commence no
later than fifteen (15) days from the date this opinion is certified as final. The costs of this
proceeding are assessed against Respondent.

SHEPARD, C.J., and DICKSON, SULLIVAN, and BOEHM, JJ., concur.
RUCKER, J., dissents with separate opinion.

11
Rucker, Justice, concurring in part and dissenting in part.

I agree with the majority that “[t]he heart of the present case turns on what truly
motivated Judge Danikolas to discharge Magistrate Sakelaris.” Slip op. at 10. And because
finding a violation of the Canons at issue here 1 is based in large measure on resolving conflicting
testimony and assessing witness demeanor and credibility, I agree there is clear and convincing
evidence that Judge Danikolas discharged Magistrate Sakelaris in retaliation for her perceived
disloyalty during her deposition in Danikolas I. I write separately however to emphasize that but
for Judge Danikolas’ position as a judicial officer, his actions in this case would not be
sanctionable at all.

Indiana follows the doctrine of employment at will. If there is no definite or
ascertainable term of employment, then the employment is at will, and is presumptively
terminable at any time, with or without cause, by either party. 2 Wior v. Anchor Industries, Inc.,
669 N.E.2d 172, 175 (Ind. 1996); Speckman v. City of Indianapolis, 540 N.E.2d 1189, 1192
(Ind. 1989). See also Sample v. Kinser Ins. Agency, Inc., 700 N.E.2d 802, 805 (Ind. Ct. App.
1998) (Employment of an at will employee may be “terminated by either party at any time for
good reason, bad reason, or no reason at all.”). This Court has recognized three exceptions to the
employment at will doctrine, only one of which is potentially applicable here. We have
recognized a public policy exception to the employment at will doctrine if a clear statutory
expression of a right or duty is contravened. For example, we have invoked this public policy
exception where an employee was discharged for filing a worker’s compensation claim,
Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973) (statutorily conferred
1
The Commission on Judicial Qualifications charged Judge Danikolas with violating Canons 1,
2, 2(B), 3(B)(2), and 3(C)(1) of the Code of Judicial Conduct. It is unclear whether “2” is a scrivener’s
error and the Commission actually intended to charge “2(A)”. In any event the masters concluded that
Judge Danikolas violated Canons 1, 2(A), and 3(C)(1). And in his papers before this Court, Judge
Danikolas makes no claim that the masters found him in violation of a Canon for which he was not
charged. Also, although the majority opinion does not say so in express terms, it implicitly has concluded
that the findings of the masters support only a violation of Canons 1 and 2(A).
2
There is no dispute that Magistrate Sakelaris is an employee at will. See Ind. Code § 33-33-45-
11 (concerning magistrates appointed for divisions 1, 2, and 3 of the Lake Superior Courts and declaring
in relevant part, “A magistrate appointed under this section . . . continues in office until removed by the
judge that the magistrate serves.”).
right to file a worker’s compensation claim), and where an employee was discharged for refusing
to commit an illegal act, McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 393
(Ind. 1988) (duty not to commit an illegal act for which the employee would be personally
liable).

In this case the masters concluded that Judge Danikolas terminated Magistrate Sakelaris’
employment because of her “truthful” deposition testimony. Masters’ Rep. & Rec. at 34, ¶ 23.
Whether characterized as a duty or a statutory right there is no question that a deponent is
obligated to testify truthfully. See Ind. Code § 34-45-1-2 (“Before testifying, every witness shall
be sworn to testify the truth, the whole truth, and nothing but the truth.”); Ind. Trial Rule 30(C)
(“The officer before whom the deposition is to be taken shall put the witness on oath . . . .”). But
what is the truthful testimony at issue in this case? The findings of the masters are silent on this
point. As the masters point out, Judge Danikolas fired Magistrate Sakelaris “because she would
not say what his attorneys wanted her to say during her deposition.” Masters’ Rep. & Rec. at 32,
¶ 158. Taken in context, however, it is apparent that what Judge Danikolas and his attorneys
wanted Magistrate Sakelaris to say was that her understanding of applicable law may have been
in error and as a result her order of incarceration for contempt may have been wrong or illegal.
Testimony refusing to acknowledge error is not susceptible to being proven true or false. It is
simply a statement of one’s position. And Indiana law does not protect an employee from
discharge in retaliation for taking a position different from that of her employer. See, e.g., Wior,
669 N.E.2d at 177-78 (finding no wrongful discharge where employer fired supervisor for
refusing to fire employee who filed a worker’s compensation claim).

In essence, by discharging an employee in retaliation for perceived disloyalty and not
saying what he wanted the employee to say during a deposition, Judge Danikolas was acting well
within the bounds of Indiana law. However, as the majority points out the Code of Judicial
Conduct makes clear that judges are held to a higher standard. “The standard is the [C]ode and it
is the particular conduct, not the outcome of the litigation, which determines whether or not there
is a violation.” Slip op. at 15 (quoting Matter of Wireman, 270 Ind. 344, 351, 367 N.E.2d 1368,
1372 (1977)). That Magistrate Sakelaris would likely be unsuccessful in litigating a retaliatory
discharge claim under the facts presented here does not absolve Judge Danikolas from liability

2
under the Code. I am thus compelled to agree that a sanction is appropriate in this case.
However, I disagree that suspension from office without pay for sixty (60) days is warranted.
This is far too punitive for conduct that otherwise would merit no sanction whatsoever. In my
view a public reprimand is sufficient. On this issue I respectfully dissent.

3