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Attorney for Respondent Attorney for The Commission On
Hon. Douglas B. Morton Judicial Qualifications
Martin E. Risacher Meg W. Babcock
Noblesville, Indiana Indianapolis, Indiana
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IN THE INDIANA SUPREME COURT
IN THE MATTER OF THE )
HONORABLE DOUGLAS ) Supreme Court Cause No.
B. MORTON, Judge of the ) 25S00-0109-JD-435
Fulton Circuit Court )
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JUDICIAL DISCIPLINARY ACTION
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JULY 8, 2002
Per Curiam.
INTRODUCTION
This matter comes before the Court as a result of a judicial
disciplinary action brought by the Indiana Commission on Judicial
Qualifications (“Commission”) against the Respondent herein, Douglas B.
Morton, Judge of the Fulton Circuit Court. Article 7, Section 4 of the
Indiana Constitution and Indiana Admission and Discipline Rule 25 give the
Indiana Supreme Court original jurisdiction over this matter.
After the Commission filed formal charges but before the matter could
be heard by the judges appointed to take evidence in this proceeding, the
parties jointly tendered a Statement of Circumstances and Conditional
Agreement for Discipline. The parties have stipulated to the following
facts.
FACTS
Respondent was serving as a special judge in a child custody matter
that arose in a neighboring county. In 1996, a previous judge had awarded
custody of the parties’ children to the mother, modifying an earlier
custody modification order awarding custody of the children to their
father. Prior to the 1996 custody decision, the mother had received
counseling from a mental health therapist, and, on a few occasions, she
also took the children to counseling sessions with this same therapist.
The mother had filed the motion seeking modification in April 1995.
In September 1995, the therapist sent two psychological reports to the
court-appointed psychological evaluator of the children, which purported to
be reports written by a clinical psychologist. The clinical psychologist
was an independent contractor with the therapist and frequently tested her
patients. The psychological reports, dated April 1995, contained
information and conclusions not supportive of the father’s continued
custody.
In preparation for the custody hearing, the court-appointed child
custody evaluator conducted his own evaluations of the children and
obtained substantial information from various sources about the
appropriateness of both parents as custodial parents. He prepared a report
for the court. In his report, he outlined all the information available to
him and referred to the contents of the psychological reports. The custody
evaluator concluded, “Based on information from interviews with all
parties, collateral data reviewed, psychological testing, and home visit
information, (the mother) clearly presents a more appropriate custodial
parent than does (the father).” Ultimately, as noted above, the previous
judge determined that custody should be returned to the mother.
After losing custody of the children, the father filed another motion
to modify custody. He requested a change of judge, and Respondent assumed
jurisdiction as special judge.
On June 18, 1999, the father filed, by counsel, a Trial Rule 60(B)
motion seeking to set aside the previous custody decision. In this motion,
the father asserted that the previous judge had awarded custody to the
mother as a result of a fraud on the court. The allegation of fraud was
based on a claim that the signature of the clinical psychologist had been
forged on the psychological reports.
Attached to the motion was an affidavit from the clinical
psychologist stating that he had no recollection of ever seeing the
children, that he did not sign the psychological reports, and that he had
not prepared them. Also attached was the affidavit of the therapist’s
secretary stating that she had signed the name of the clinical psychologist
to the reports at the direction of the therapist who told the secretary
that the clinical psychologist had approved doing so because of time
constraints. Father asserted that the therapist had created the reports.
In addition to filing the motion with the clerk of the court and
serving opposing counsel, the father’s attorneys hand-delivered the motion
to Respondent. When they presented Respondent with a copy of the motion,
the three engaged in an ex parte conversation.
One of the father’s attorneys told Respondent that he thought that
Respondent would find the motion “very interesting reading,” and that it
included information that established a “lay down” case of forgery against
the therapist. This same attorney urged Respondent to review the motion
promptly. He told Respondent that he felt that, pursuant to a protective
order relating to documents about the children, he could not refer the
alleged forgery to law enforcement himself, but he told the Respondent that
he expected Respondent would feel compelled to do so. He also suggested
that if Respondent was inclined to refer the case to law enforcement, the
attorney was opposed to sending it to a certain named county, and instead
preferred another county that he identified. This same attorney also told
Respondent that he had concerns for the safety of the woman who had signed
the psychologist’s name to the psychological reports because he did not
trust the therapist.
Respondent contacted a colleague who suggested that Respondent turn
the matter over to the State Police for investigation. The Respondent
followed this advice. However, when Respondent was unsuccessful in making
a referral to the local State Police post, he decided to contact a
prosecuting attorney who had previously worked with the State Police.
Respondent believed that this prosecutor would be able to advise him of the
proper procedure for referral and the identity of the appropriate State
Police official to whom the referral should be made.
The prosecuting attorney contacted by Respondent is the brother of the
father’s local counsel who was present during the ex parte communication,
although not the attorney who spoke directly with Respondent. The
prosecutor subsequently sent a sample letter to Respondent for use in
making the State Police referral, gratuitously adding a hand-written note
stating, “Good Hunting.” At Respondent’s request, the prosecuting attorney
never advised his brother of this contact.
Thereafter, Respondent forwarded the materials presented to him by
the father’s lawyers to the State Police. Respondent did not advise either
party of the referral to the State Police.
Within a few days after being assigned the matter, the State Police
investigator met with Respondent and reviewed the entire file. Respondent
declined the invitation by the investigator to be kept informed regarding
the progress of the investigation. Thereafter, a county prosecutor
authorized an immediate investigation.
The ex parte communication occurred on June 18, 1999. On June 29,
1999, Respondent scheduled the hearing on the Trial Rule 60(B) motion for
August 17, 1999. On July 7, 1999, the father filed an emergency petition
seeking a temporary modification of custody pending the Respondent’s
decision on the Trial Rule 60(B) motion. The petition alleged no factual
basis for the request, nor any emergency grounds.
The referral by Respondent to law enforcement occurred on July 12,
1999. On July 15, Respondent presided over the hearing on the emergency
custody issue, during which the father’s attorney made references to the
alleged crimes by the therapist. Respondent made no disclosure of the ex
parte communication or the referral to the police at this hearing.
Respondent submits that he failed to make any disclosure because he was
concerned that his disclosure might jeopardize the investigation and that
adequate time for disclosure prior to the hearing still existed.
On July 15, the Respondent granted a motion filed by the father and
continued the August 17 hearing, resetting it for August 31. Unknown to
Respondent, the State Police investigator interviewed the father’s
attorneys on July 22, 1999. On August 10, the parties appeared in court on
various discovery issues, and Respondent again made no disclosures of the
ex parte conversation or the referral to the police.
Later that day, one of the mother’s attorneys was reviewing what he
believed to be the court’s official file and discovered a sub-file
captioned “(case name) Criminal Investigation,” which happened to be
Respondent’s private file. This file included the sample referral letter
with the note to Respondent stating, “Good Hunting,” and the correspondence
to the State Police.
Thereafter, the mother’s attorney filed a motion asking Respondent to
disqualify himself. At the hearing on this motion, held on August 23,
1999, Respondent and both of the father’s attorneys revealed the nature of
the ex parte communication. Respondent also explained his referral of the
alleged forgeries to the State Police by stating that it was his belief
that the information warranted prompt reporting and that he was the only
person in a position to report it. Respondent did not disqualify himself
from the case.
The mother then filed, by her counsel, an original action with the
Indiana Supreme Court requesting a writ of mandamus requiring Respondent to
disqualify himself. The issues regarding the conversation between the
father’s lawyers and Respondent and the details of the criminal referral
were fully briefed. Respondent declined to file any response to the writ
application. Ultimately, this Court issued an order stating:
The Court has now reviewed the materials of record, and met in
conference to discuss the case. The original action is an
extraordinary remedy, which is viewed with disfavor, and may not be
used as a substitute for appeal. Original Action Rule 2(E). Writs of
mandamus will be issued only where the trial court has an absolute
duty to act or refrain from acting. State ex rel. Pickard v. Superior
Court of Marion County, 447 N.E.2d 584 (1983). In this instance, the
Court cannot say with certainty that relator has met this standard.
On that narrow basis, the Court DENIES the writ.
Respondent believed that the Court’s ruling meant that no adequate showing
of an appearance of impropriety had been made and that he had not violated
the Code of Judicial Conduct by refusing to disqualify himself.
By the time the hearing on the father’s motion to set aside the
custody decision occurred in January 2000, the prosecutor investigating the
allegations against the therapist wrote to Respondent and stated, “I am
writing to advise you formally of the outcome of the criminal
investigation, which arose from the report you made to the Indiana State
Police regarding [the child custody case]. Given the assertions made in
the affidavits filed in the [child custody] case, I think this matter
certainly needed to be investigated. However, as often proves to be the
case, the recollections of the various witnesses did not turn out to be
solid and reliable as the affidavits suggested.”
Before evidence was presented at the hearing on the father’s motion
to set aside the prior custody decision, Respondent denied the therapist’s
motion to intervene in the proceeding. Thereafter, the father presented
his case, focusing in large part on the psychological reports alleged to
have been forged by the therapist. The clinical psychologist, who had
stated in his affidavit that he had no recollection of ever seeing the
children, acknowledged at the hearing that his handwriting was on certain
testing documents relating to the children, but he insisted he had not
created the psychological reports. The therapist testified and denied the
forgery.
After three and half days of evidence, Respondent advised the parties
that his inclination was to rule against the father’s motion to set aside
the custody order, having concluded that the father failed to prove that
the custody modification order was obtained by fraud, in part because the
custody evaluator did not rely upon the psychological reports in
recommending that custody go to the mother, and also because the evidence
did not establish that the mother was involved in the alleged scheme to
defraud the prior court. However, in rendering his decision, Respondent
stated that the father had established that the psychological reports were
forged and that the therapist was the “leading candidate” in a forgery.
Respondent stated further that he had “high hopes” the criminal
investigation would remain active, which statement he submits was made
because he believed that the continued investigation of the therapist’s
psychological reports had significance to the judiciary with respect to the
trustworthiness of child custody evaluations. Respondent now understands
that his comments further undermined the public faith in his impartiality
as well as the faith of those with interests at stake in the custody case.
CONCLUSION
The parties agree, as does this Court, that Respondent violated Canon
3(B)(8) of the Code of Judicial Conduct by engaging in a conversation with
the father’s attorneys, which included commentary on the strength of the
motion, insinuations that the therapist was a threat to a witness, and an
expressed desire that the Respondent initiate a criminal investigation of
the therapist.
The parties and Court also agree that Respondent violated Canon
3(B)(8) by failing to promptly report the ex parte communication.
Finally, the parties and Court agree that Respondent should have
disqualified himself because of the ex parte contact, the criminal
investigation he initiated, and the failure to disclose those facts.
Judicial Canon 3(E)(1) requires a judge to disqualify if the judge’s
impartiality might reasonably be questioned. The standard 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 Edwards, 694 N.E.2d 701, 710 (Ind. 1998).
One purpose of disqualification is to preserve the parties’ and the
public’s faith in the fairness of the system, even when the judge asserts
he has no personal bias.
In this case, the combination of all of the facts indicate that a
reasonable person would have doubted Respondent’s impartiality after his
failure to disclose the ex parte communication and the referral to the
State Police, and after the mother’s attorney discovered the sample letter
with the “Good Hunting” note. These facts, coupled with Respondent’s later
comments on the record about his continuing suspicions of the therapist
after the determination by the prosecuting attorney not to file criminal
charges, gave the appearance of partiality. The complaint against
Respondent might have been avoided by prompt disclosure of the ex parte
communication and the criminal referral.
In mitigation, Respondent states, in effect, that he sincerely but
mistakenly believed that his conduct was appropriate to the situation. The
parties also ask the Court to recognize Respondent’s long and exemplary
judicial service to the citizens of the State.
The parties have further agreed, as does the Court, that the
appropriate sanction for this misconduct is a public reprimand.
Accordingly, Douglas B. Morton, Judge of the Fulton Circuit Court, is
hereby reprimanded. This discipline terminates the disciplinary
proceedings relating to the circumstances of this cause. The costs of this
proceeding are assessed against Respondent.
All Justices concur.