In Re Wilkins

FOR THE RESPONDENT: FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION:

Ronald E. Elberger Donald R. Lundberg, Executive
Secretary
Robert B. Clemens Charles M. Kidd, Staff
Attorney
BOSE McKINNEY & EVANS Indianapolis, Indiana
Indianapolis, Indiana

G. Daniel Kelley, Jr.
Thomas E. Mixdorf
ICE MILLER
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

IN THE MATTER OF )
) Cause No.: 49S00-0005-DI-341
MICHAEL A. WILKINS. )

DISCIPLINARY ACTION

January 3, 2003

RUCKER, Justice

Respondent has moved that I disqualify myself from participation in
this case. More precisely, he has filed a petition for rehearing from this
Court’s 3-2 decision sanctioning him for violating Indiana Professional
Conduct Rule 8.2(a). In part, respondent seeks rehearing “in order for
Justice Rucker to address whether recusal is appropriate in light of his
participation on the Court of Appeals’ panel in Michigan Mutual Insurance
Company v. Sports , Inc., 698 N.E.2d 834, 845 (Ind. Ct. App. 1998).”
Consolidated Pet. for Reh’g and Mot. for Justice Rucker to Recuse at 8.
To place respondent’s motion in context, a brief summary of the facts
is appropriate. In a lawsuit against Michigan Mutual Insurance Company
alleging bad-faith denial of insurance coverage, a jury awarded
compensatory and punitive damages to Sports, Inc. The trial court entered
judgment on the jury’s verdict, and on review the Indiana Court of Appeals
affirmed the judgment. I was a member of the Court of Appeals at that
time, and along with Judges Darden and Garrard I served on the panel
assigned to the case. Judge Darden wrote the opinion and Judge Garrard
concurred. I concurred in the result – neither joining in the reasoning or
rationale of the opinion, nor writing a separate opinion of my own.
Michigan Mutual did not seek rehearing of the Court of Appeals’
opinion. Rather, represented by the respondent and an attorney from the
State of Michigan, Michigan Mutual filed a petition to transfer in this
Court. In the petition respondent asserted that the Court of Appeals’
opinion materially misstated the record by making affirmative misstatements
of fact. In his supporting brief respondent amplified his assertion with
the following statement:
The Court of Appeals’ published Opinion in this case is quite
disturbing. It is replete with misstatements of material facts, it
misapplies controlling case law, and it does not even bother to
discuss relevant cases that are directly on point. Clearly, such a
decision should be reviewed by this Court. Not only does it work an
injustice on appellant Michigan Mutual Insurance Company, it
establishes dangerous precedent in several areas of the law. This
will undoubtedly create additional problems in future cases.

Br. in Supp. of Appellant’s Pet. to Trans. at 1.

Indeed, the Opinion is so factually and legally inaccurate that one is
left to wonder whether the Court of Appeals was determined to find for
Appellee Sports, Inc., and then said whatever was necessary to reach
that conclusion (regardless of whether the facts or the law supported
its decision).

Id. at n.2. On March 5, 1999, the Indiana Supreme Court denied appellant’s
petition to transfer. Mich. Mut. Ins. Co. v. Sports, Inc., 706 N.E.2d 555,
556 (Ind. 1999). The Court also entered an order striking Michigan
Mutual’s brief as a “scurrilous and intemperate attack on the integrity of
the Court of Appeals.” Id. at 555. I joined this Court thereafter on
November 19, 1999.
On May 30, 2000, the Disciplinary Commission of the Supreme Court of
Indiana filed a complaint against respondent Michael A. Wilkins. Based on
the above quoted portions of the Michigan Mutual transfer brief, the
Commission alleged that respondent violated Rule 8.2(a) of the Rules of
Professional Conduct.[1] A hearing officer was appointed and after
conducting a hearing determined that respondent violated the Rule as
charged. On June 13, 2002, respondent filed a petition with this Court
seeking review of the hearing officer’s determination. The five-page
petition did not cite the Court of Appeals’ opinion in Michigan Mutual. In
addition to the petition itself, respondent also filed a twenty-seven page
supporting brief. Except for two passing references that were inserted in
footnotes, respondent again did not cite the Court of Appeals’ opinion in
Michigan Mutual. See Br. in Supp. of Pet. for Review at 2 n.3, 17 n.31.
Rather, respondent focused on the comments in his 1999 transfer brief to
this Court and the substance of the alleged Rule violation.
On October 29, 2002, this Court issued a 3-2 per curiam opinion
determining that respondent violated Professional Conduct Rule 8.2(a) and
imposing a sanction of a thirty-day suspension from the practice of law.
See In re Wilkins, 777 N.E.2d 714 (Ind. 2002) (Shepard, C.J., and Dickson
and Rucker, JJ., concurring; Sullivan and Boehm, JJ., dissenting with
separate opinions). Thereafter on November 19, 2002, respondent filed a
petition for rehearing. For the first time since these proceedings began,
nearly a year and a half ago, respondent moves for my recusal. He does not
seek my immediate disqualification. Rather, respondent wants me to remain
a part of these proceedings long enough to vote on his petition for
rehearing and only then cease further participation in this case.
Citing Canon 3(E) of the Indiana Code of Judicial Conduct respondent
contends that my recusal “was and is required.” Consolidated Pet. for
Reh’g and Mot. for Justice Rucker to Recuse at 11.[2] The Canon provides
in relevant part:
(1) A judge shall disqualify himself or herself in a proceeding in
which the judge’s impartiality might reasonably be questioned,
including but not limited to instances where:

a) the judge has a personal bias or prejudice concerning a party or a
party’s lawyer, or personal knowledge of disputed evidentiary
facts concerning the proceeding . . . .

Jud. Canon 3(E)(1)(a). The underlying thrust of respondent’s argument is
that because I served on the panel whose opinion respondent criticized, I
should have disqualified myself sua sponte from hearing his disciplinary
matter.
There is no question that a judge is required to disqualify himself
or herself in any proceeding in which the judge’s impartiality might
reasonably be questioned. The Canon demands it. In addressing those
concerns the issue has been cast as “whether an objective, disinterested
observer fully informed of the facts underlying the grounds on which
recusal was sought would entertain a significant doubt that justice would
be done in the case.” Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th
Cir. 1985). As this court has recently stated, the issue “is not whether
the judge personally believes himself or herself to be impartial, but
whether a reasonable person aware of all the circumstances would question
the judge’s impartiality.” In re Morton, 770 N.E.2d 827, 831 (Ind. 2002).
The facts and circumstances are these. First, I was completely
unaware that I had served on the underlying Court of Appeals panel.
Neither before the hearing officer nor in his petition to this court for
review of the hearing officer’s determination did respondent ever mention
that I served on the panel. Rather, at every opportunity respondent
focused on the substance of the comments that provided the basis for this
disciplinary action. That was my focus as well. Respondent does not
reveal why he failed before now to bring this matter to my attention.
However, citing to several cases in which I served on the Court of Appeals
panel and sua sponte decided not to participate once a party sought
transfer to this Court, respondent says that it was “a forgone conclusion
that Justice Rucker would recuse.” Consolidated Pet. for Reh’g and Mot.
for Justice Rucker to Recuse at 9. However, each case respondent refers to
in support of this assertion involved a petition to transfer from a case in
which I either wrote a separate dissenting opinion, see Bagnall v. Town of
Beverly Shores, 705 N.E.2d 213 (Ind. Ct. App. 1999); or concurred outright
in the majority opinion, see In re Estate of Troxel, 720 N.E.2d 731 (Ind.
Ct. App. 1999); Dullen v. State, 718 N.E.2d 1237 (Ind. Ct. App. 1999);
Rheem Mfg. Co. v. Phelps Heating & Air Conditioning, Inc. 714 N.E.2d 1218
(Ind. Ct. App. 1999); United States Gypsum, Inc. v. Ind. Gas Co., Inc., 705
N.E.2d 1017 (Ind. Ct. App. 1998); Bosecker v. Westfield Ins. Co., 699
N.E.2d 769 (Ind. Ct. App. 1998). Unlike a petition to transfer where the
Court of Appeals’ opinion or decision itself is being challenged, thereby
instantly revealing the composition of the panel deciding the case, the
matter before this Court was different. The issue before us was not the
Court of Appeals’ opinion, but rather what the respondent had to say about
the opinion. The composition of the panel deciding the opinion was not at
all apparent, nor in my view particularly relevant. The comments
themselves were at issue; and regardless of the panel members, either the
comments were made “with reckless disregard as to [their] truth or falsity
concerning the . . . integrity of a judge” or they were not. See Prof.
Cond. R. 8.2(a).
In addition, by the time respondent’s disciplinary matter reached
this Court, I had served on the Court of Appeals for nearly nine years.
During that period the Court of Appeals issued over fourteen thousand
opinions, some of which, obviously, I authored, others of which I served as
a member of the panel. Absent the respondent bringing to my attention that
I happened to have served on the underlying Court of Appeals panel in this
particular case, I simply would have had no reason to assume my
involvement. And this is especially so considering that in his brief
before this Court challenging the hearing officer’s disciplinary ruling,
respondent chose to cite to the Court Appeals opinion only in passing in
two of forty-five footnotes. Judges cannot be “call[ed] upon . . . to
perform the impossible – to disqualify themselves based on facts they do
not know.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 861
(1988). Here, the connection between the fact that I served on the
Michigan Mutual panel and the fact that I participated in respondent’s
disciplinary action is “so attenuated that no judicial officer could
reasonably be expected to identify [this] potential for recusal without the
issue being raised by counsel.” Nat’l City Bank, Ind. v. Shortridge, 691
N.E.2d 1210, 1211 (Ind. 1998).
Second, respondent’s failure to raise the issue of my involvement in
the underlying Court of Appeals opinion implies one of three possibilities:
(1) the respondent was aware that I had served on the Court of Appeals
panel but decided not to press the issue because he was satisfied that I
would be impartial in deciding this disciplinary matter; (2) the respondent
was aware that I had served on the panel but decided to await the outcome
of this Court’s decision on his disciplinary matter and then seek recusal
if the decision were unfavorable; or (3) the respondent himself was unaware
that I had served on the panel. This latter possibility is highly unlikely
given that within days of this Court’s decision both local and national
press were reporting it and specifically referencing my involvement in the
underlying Court of Appeals opinion. See, e.g., Kevin Corcoran, Lawyer’s
Penalty Criticized, The Indianapolis Star (Nov. 5, 2002) (attributing a
statement to source who said “the case shouldn’t have gone against Wilkins,
because Justice Robert Rucker had served on the Court of Appeals panel
Wilkins criticized. That should have kept Rucker from casting a deciding
vote . . . .”), at http://www.indystar.com; David L. Hudson, Jr., Footnote
In Mouth: Indiana High Court Suspends Lawyer for Comments in Brief, ABA
Journal (Nov. 15, 2002) (noting “[i]n an unusual twist, Justice Robert D.
Rucker, who voted with the 3-2 majority, also served on the appellate panel
criticized in Wilkins’ brief”), at
http://www.abanet.org/journal/ereport/n15suspend.html; Gary Young, Footnote
Gets A Lawyer Suspended, National Law Journal (Nov. 11, 2002) (commenting
“[t]he case has drawn controversy . . . because one of the judges who voted
for Wilkins’ suspension, Justice Robert D. Rucker, served on the Court of
Appeals until 1999 and had a hand in the decision that Wilkins
criticized”), at http://www.nlj.com.[3]
As for possibility number two, respondent’s lack of timeliness in
seeking recusal is troubling. “Counsel . . . may not lie in wait, raising
the recusal issue only after learning the court’s ruling on the merits.”
Tyson v. State, 622 N.E.2d 457, 460 (Ind. 1993) (quoting Phillips v. Amoco
Oil Co., 799 F.2d 1464, 1472 (11th Cir. 1986)); see also Leslie W.
Abramson, Judicial Disqualification under Canon 3 of the Code of Judicial
Conduct 11 (2d ed. 1992) (identifying two primary policy reasons for
timeliness in the filing of recusal motions: (i) a party, although aware of
facts that may disqualify a judge, may take a chance on obtaining a
favorable trial result and then complain only if the result is unfavorable,
and (ii) a motion to recuse is disruptive and delays litigation). That
leaves possibility number one: respondent was aware that I had served on
the Court of Appeals panel but decided not to press the issue because he
was satisfied that I would be impartial in deciding this disciplinary
matter. If that is in fact the case, then respondent is correct. Nothing
has changed except respondent did not receive the result he anticipated.
Respondent also insists that apart from questions of partiality under
Canon 3E(1), my recusal is nonetheless required because I have “personal
knowledge of disputed evidentiary facts” under Canon 3(E)(1)(a).
Consolidated Pet. for Reh’g and Mot. for Justice Rucker to Recuse at 16.
Specifically he claims “[a]s one of the three participants in the Michigan
Mutual panel’s deliberations which must have taken place at least before
and/or after the oral argument of July 9, 1998, Justice Rucker
unquestionably has personal knowledge of the facts bearing upon Mr.
Wilkins’ statement.” Id.
It is not at all clear to me exactly which facts the respondent is
referring to. His statement was that the Court of Appeals’ opinion “is so
factually and legally inaccurate that one is left to wonder whether the
Court of Appeals was determined to find for Appellee Sports, Inc., and then
said whatever was necessary to reach that conclusion (regardless of whether
the facts or the law supported its decision).” Br. in Supp. of Appellant’s
Pet. to Trans. at 1 n.2. If respondent is implying that I participated in
a court conference where a part of the discussion involved ruling against
his client regardless of the law and the facts, then he is mistaken. More
to the point, the question is one of respondent’s state of mind and of
respondent’s conduct. See, e.g., In re Atanga, 636 N.E.2d 1253, 1257 (Ind.
1994). “What did Respondent know at the time he made the statements . . .
? Did he have a basis upon which to make statements concerning the Court?
Did the statements he made challenge the qualifications or integrity of the
judge? Were the statements reckless in light of his knowledge and
experience?” Id. (sanctioning an attorney for violating Rule of
Professional Conduct 8.2(a) for among other things referring to a trial
judge as ignorant, insecure, and a racist). Here, respondent fails to
explain how any “facts” that I possess could have any bearing on his state
of mind or further what those facts may be.
I am firmly convinced that I have fairly and impartially decided
respondent’s disciplinary matter. Even had I been conscious of my
involvement in the underlying Court of Appeals opinion, I cannot now say
that I absolutely would have disqualified myself from deciding the instant
case. After all, as reflected by my “concur in result” vote, although I
agreed with the majority’s conclusion that the trial court’s judgment
affirming the jury verdict was correct, I did not agree with the majority’s
reasoning and rationale in reaching that conclusion. Consequently, I would
not have been especially concerned about the respondent’s criticism of the
opinion.
Nonetheless, I acknowledge that the question is not whether I
personally believe I have been impartial. Rather, it is whether a
“reasonable person aware of all the circumstances” would question my
impartiality. Morton, 770 N.E.2d at 831. And in this context a
“reasonable person” has been described as “the proverbial average person on
the street with knowledge of all the facts and circumstances alleged in the
motion to recuse . . . .” In re Martin-Trigona, 573 F. Supp. 1237, 1243
(D. Conn. 1983). Echoing this sentiment one court has observed
“disqualification of a judge is mandated whenever a significant minority of
the lay community could reasonably question the court’s impartiality.”
Pennsylvania v. Druce, 796 A.2d 321, 327 (Pa. Super. Ct. 2002), appeal
granted in part, 809 A.2d 243 (Pa. 2002). In this case there is a
possibility, particularly outside of the legal community, that my
impartiality could be questioned. See, e.g., United States v. Jordan, 49
F.3d 152, 157 (5th Cir. 1995) (noting that the average person on the street
as “an observer of our judicial system is less likely to credit judges’
impartiality than the judiciary”); In re Mason, 916 F.2d 384, 386 (7th Cir.
1990) (observing that a lay observer would be less inclined to credit a
judge’s impartiality than other members of the judiciary). Because a judge
has a duty to promote public confidence in the impartiality of the
judiciary, Tyson, 622 N.E.2d at 459, and because “[c]oncerns about public
confidence in the judicial system” underlie Canon 3, id., out of an
abundance of caution I therefore recuse myself from further involvement in
this case. And I do so effective immediately declining respondent’s
request to consider first his petition for rehearing now pending before
this Court.

-----------------------
[1] The Rule provides:

A lawyer shall not make a statement that the lawyer knows to be false
or with reckless disregard as to its truth or falsity concerning the
qualifications or integrity of a judge, adjudicatory officer or public
legal officer, or of a candidate for election or appointment to
judicial or legal office.

Ind. Professional Conduct Rule 8.2(a).
[2] Respondent also cites Canon 2(A) which provides, “[a] Judge shall
respect and comply with the law and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of the
judiciary.” Ind. Judicial Conduct Canon 2(A). In doing so, respondent
provides no independent assessment of its applicability. Rather he
references the “impartiality of the judiciary” component of this Canon and
then shifts to a discussion of “impartiality” as the term appears in Canon
3(E)(1). See Consolidated Pet. for Reh’g and Mot. for Justice Rucker to
Recuse at 14-16.
[3] An observation by the 2nd Circuit Court of Appeals concerning
media exposure is instructive:

[W]ith regard to the appearance of partiality, the appearance must
have an objective basis beyond the fact that claims of partiality have
been well publicized. . . . That which is seen is sometimes merely a
smokescreen. Judicial inquiry may not therefore be defined by what
appears in the press. If such were the case, those litigants
fortunate enough to have easy access to the media could make charges
against a judge’s impartiality that would effectively veto the
assignment of judges. Judge-shopping would then become an additional
and potent tactical weapon in the skilled practitioner’s arsenal. The
test, as we have stated, is one of reasonableness, and the appearance
of partiality portrayed in the media may be, at times, unreasonable.

In re Aguinda, 241 F.3d 194, 201-02 (2d Cir. 2001).