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Attorney for Respondent Attorneys for The Commission
On
Hon. Raymond L. Kern Judicial Qualifications
Kevin P. McGoff Meg W. Babcock
Indianapolis, Indiana Donald R. Lundberg
Indianapolis, Indiana
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IN THE INDIANA SUPREME COURT
IN THE MATTER OF THE ) Supreme Court Cause Nos.
HONORABLE RAYMOND ) 47S00-0105-JD-226
L. KERN, Judge of Lawrence ) 47S00-0206-JD-333
Superior Court I )
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JUDICIAL DISCIPLINARY ACTION
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PUBLISHED ORDER
In this order, we consolidate and finalize two separate judicial
disciplinary actions brought by the Indiana Commission on Judicial
Qualifications (“Commission”) against the Respondent herein, Raymond L.
Kern. At all times relevant to these proceedings, Respondent was the
elected Judge of Lawrence Superior Court I. Article 7, Section 4 of the
Indiana Constitution and Indiana Admission and Discipline Rule 25 give the
Indiana Supreme Court original jurisdiction over these matters.
The first set of charges brought by the Commission alleged that
Respondent engaged in improper ex parte communications with a litigant in
his court. Respondent denied the allegations. We appointed three trial
judges to serve as special masters. The masters’ job is to hear evidence
and to prepare a report to the Court of their factual findings and
conclusions. See Ind. Admission and Discipline Rules 25(VIII)(I), (K), and
(N).
A trial was conducted. The masters prepared a thorough report. In
sum, the masters found that the following occurred.
A mother had custody of her child. The mother was separated from her
husband and a dissolution proceeding was pending. The husband was not the
child’s biological father but he apparently wanted to maintain a
relationship with the child. The husband appeared one afternoon at the
child’s kindergarten class and attempted to remove the child from the
school. The principal of the school contacted mother by telephone. Based
on the mother’s claim of custody, the principal refused to release the
child to the husband.
The husband then went to Respondent’s court where court staff helped
him prepare an affidavit. The affidavit made various claims, some of which
were later found to be false. Even with the false statements, the
affidavit did not allege specific facts showing that immediate and
irreparable injury would result if an order was not issued before mother
could be heard, as required under these circumstances by Indiana Trial Rule
65(B)(1). Respondent nevertheless immediately prepared and issued an order
granting custody to the husband. The husband returned to the school and,
armed with Respondent’s order, took the child home with him that same day.
Neither the husband nor Respondent contacted the mother about the
proceeding that took place in the court.
However, alerted to the potential problem by the call from the
principal, the child’s mother immediately telephoned her attorney. The
attorney called the court and spoke to court staff and to Respondent the
same afternoon the custody order was issued. The attorney asked Respondent
to take no action until the mother could be heard. Respondent did not
inform the attorney that he had already issued the custody order. Instead,
later that day, Respondent faxed a copy of the affidavit and the custody
order to the attorney. The attorney filed a motion to vacate the order and
set the matter for expedited hearing. Respondent did not rescind the
custody order that had been issued on an ex parte basis, and did not set
the matter for a hearing for another twenty days. Following that hearing,
Respondent ordered custody returned to the mother.
The masters found Respondent’s conduct violated Canon 3B(8) of the
Code of Judicial Conduct, which generally prohibits a judge from permitting
or considering ex parte communications concerning a pending proceeding
except in limited circumstances not present in this case. They recommended
that Respondent be suspended from office for a period not to exceed fifteen
days. Three aggravating circumstances were cited by the masters. First,
Respondent made false statements during the course of the trial. Second,
Respondent had been previously warned by the Commission about improper ex
parte contact, and was in fact the judge whose conduct was the subject of
In re Anonymous, 729 N.E.2d 566 (Ind. 2000). Third, Respondent showed no
remorse and testified at the trial that he still believed he had done the
right thing.
Once the masters’ report was filed, the matter was submitted to the
Court for consideration. Respondent objected to the findings of the
masters. The Commission recommended that Respondent be removed from office
for his conduct.
We review the findings of the masters de novo and reach our own
conclusions about whether misconduct has occurred and, if so, what sanction
is appropriate. See Adm. Disc. R. 25(VIII)(P)(3). However, because the
Commission had recommended removal, we suspended Respondent from office
until further order of the Court. See Adm. Disc. R. 25(V)(B)(“A judicial
officer shall be suspended with pay while there is pending before the
Supreme Court a recommendation for the retirement or removal of the
judicial officer.”).
While the initial proceeding was pending before us for review, the
Commission filed a second set of charges against Respondent. In this new
charging complaint, the Commission alleged that: (1) Respondent had issued
misleading orders and made misleading statements in an unsuccessful attempt
to obtain payment from Lawrence County for the legal expenses he incurred
in defending himself in the initial action; (2) Respondent submitted
mileage claims to Lawrence County on behalf of employees whose mileage
expenses had already been paid by the Commission; (3) Respondent continued
to preside over cases involving his own creditors, even as he and his
personal lawyers were negotiating with those same creditors in the course
of his bankruptcy proceeding; and that (4) Respondent made a false
statement to the Commission about the status of his finances.
Shortly after Respondent filed his answer to the second set of
charges, the parties tendered a “Conditional Agreement To Resolution Of
Charges.” Under the terms of the agreement, Respondent acknowledged
misconduct in the initial proceeding and agreed to resign as Judge of
Lawrence Superior Court I effective nine days from the date the agreement
was tendered. Respondent agreed not to either seek or accept any future
judicial office or to serve in any judicial capacity in Indiana. The Court
accepted the agreement, rendering moot the adjudication of the second set
of charges.
Respondent resigned and we now issue this order for publication to
document the circumstances of that resignation. This resolution of the
proceedings constitutes professional discipline which must be reported to
the appropriate authority should Respondent seek admission as a lawyer in
another jurisdiction. The two proceedings involving Respondent are at end.
The costs of the proceedings are assessed against Respondent.
Done at Indianapolis, Indiana, this 9th day of September, 2002.
/s/ Randall T. Shepard
Chief Justice of Indiana
All Justices concur.