                                                                      FILED
                                                                 Mar 14 2018, 2:36 pm

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




                                IN THE

        Indiana Supreme Court
               Supreme Court Case No. 05S00-1706-JD-430

                In the Matter of the Honorable
                 Dean A. Young, Judge of the
                    Blackford Circuit Court,
                                 Respondent.


                           Decided: March 14, 2018

                          Judicial Discipline Action

                             Hon. Judith Stewart,
                   Hon. Earl G. Penrod, Senior Judge, and
                          Hon. Matthew C. Kincaid,
                               Special Masters.



                            Per Curiam Opinion
Chief Justice Rush, Justice David, Justice Massa, and Justice Slaughter concur.
                       Justice Goff did not participate.
Per Curiam.

   We find that Respondent, the Honorable Dean A. Young, Judge of the
Blackford Circuit Court, engaged in judicial misconduct relating to a
temporary restraining order that he heard and issued without adequate
notice to the responding party or witnesses, and while he had a specific
interest in the subject matter. The Special Masters recommended, and the
parties agree, that the appropriate discipline is to suspend Judge Young
for six days without pay.

    This matter is before us on the report of the Special Masters we
appointed to hear evidence on the Indiana Commission on Judicial
Qualifications’ (“Commission’s”) “Notice of the Institution of Formal
Proceedings and Statement of Charges” against Judge Young, and on the
parties’ joint response to the report. We have original jurisdiction under
Article 7, Section 4 of the Indiana Constitution and Indiana Admission
and Discipline Rule 25.


Background Facts1
    This case arose in 2015 from a disagreeable relationship between Derinda
Shady, who was the elected Blackford County Clerk, and the County’s two
judges: Circuit Court Judge Young and Superior Court Judge John Barry.
The tension culminated in the two Judges holding a restraining-order
hearing at which Shady was not present, then issuing a restraining order
barring her from the courthouse until the order was vacated six days later.

   On August 3, 2015, the Blackford County Council announced its intent
to cut funding for two positions in the Blackford County Clerk’s office.
That announcement upset Shady, who did not think her office could do its
work with only the two employees who would remain.

  Shady asked Judge Young to intervene with the County Council, but he
and Judge Barry declined and instead transferred open criminal-court files


1As discussed below, we accept the parties’ agreement with the Masters’ proposed findings of
fact, conclusions of law, and recommended sanction. We therefore recite the facts consistent
with the Masters’ findings.



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to their own offices in an effort to lighten the Clerk’s workload. Those
decisions angered Shady—she told Judge Young, “You can collect your
own court costs, too,” and she told Judge Barry that he’d “better bring a
cop” if he came to retrieve the files. She apologized a few days later and
let the files be transferred without incident. But she also continued
referring to the Judges by obscene names in front of office staff and the
public. (The Judges knew secondhand of her insolence but took no action.)

   On August 19, the County Council held a public hearing for budget
appeals. Shady attended to appeal the defunding decision, and the Judges
attended the meeting for her part of the discussion before going back to
Judge Young’s home. The Council rejected Shady’s staffing appeal, and
Shady was rude to Council members afterward—but she made no specific
threat not to do her job or to destroy court records. Judge Barry received
reports about Shady’s rude behavior and told Judge Young about them,
but Judge Young did not see Shady’s behavior firsthand.

  The next morning, August 20, Judge Young arrived at the courthouse at
about 7:30 and began making phone calls, including to one of the Council
members, asking about Shady’s behavior the previous evening. He then
met with Judge Barry and suggested that they “would have a hearing and
‘lock [Shady] out of her office’” if her behavior did not change.

   By 8:00 that morning, Judge Young went to the Clerk’s Office to demand
that Shady come upstairs to meet with him and Judge Barry. Shady was
on the phone at the time, but after her call, she phoned Judge Young and
told him “if he had something to say that he could come down to her
office.” Judge Young replied, “Get up here! Now!” Shady came upstairs
and brought her daughter, Deputy Clerk Patricia Milholland. But Judge
Young was unwilling to have Milholland present. At a stalemate, Shady
and Milholland went back downstairs after a few minutes, and no
meeting happened that day.

   The Special Masters found that Judge Young probably told Shady that
they would hold a hearing about her conduct if she refused to talk to
them—but probably not that they would hold the hearing a matter of
minutes later, or that the issue would involve contempt of court or
enjoining her from entering the Courthouse.


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   Unbeknownst to Judge Young, Shady went home upset after the
abortive “meeting” and went to the hospital with a panic attack later that
morning. Sometime after Shady left, Judge Young sent a Sheriff’s Deputy
to bring Shady, Milholland, and another Deputy Clerk upstairs to court.
The Special Masters found that neither Deputy Clerk probably knew why
they were being brought into court, even though Judge Young was probably
considering enjoining them from the building, too. (Findings 17–19)

  Beginning at 8:25 a.m., Judges Young and Barry sua sponte began a
hearing to enjoin Shady from the Courthouse. There was no written
application, affidavit, or verified complaint. Shady had no written notice
of the date and time of the hearing or its subject, nor did the Deputy
Clerks who were present have prior written notice of the allegations
against them before Judge Young questioned them.

   At the hearing, with no personal knowledge of the reasons for Shady’s
absence, Judge Young stated that she had “stormed out” and “fled the
courthouse grounds.” He also stated that the Sheriff was “unable to secure
her attendance,” even though there had been no further efforts in that
regard—and even though Shady’s daughter Milholland was present. Judge
Young also made comments evincing bias against Shady—including that
she was “totally poisoning this workplace” and that if she’d made her
“bring a cop” comment to him instead of Judge Barry, “she would be here
in hunter orange this morning, in chains, where she would stay and enjoy
her Thanksgiving dinner, probably her Christmas dinner as well.”

   Judge Young then declared an “emergency” that “the Clerk is unfit to
assume her duties,” and that she would be “locked out of the entire
courthouse square.” He further announced that Shady “will be arrested” if
she appeared at the courthouse before the next hearing, which he set for
August 26, six days later—even though there had been no evidence or
allegations that Shady had threatened to sabotage the Court’s files.

  Only after making those statements (and letting Judge Barry make brief
remarks) did Judge Young begin questioning the Deputy Clerks who were
present. The Special Masters listened to a recording of the hearing and
specifically found that Judge Young’s tone did not “reflect anger or
upset”—but they also found that his questioning was like “an investigator


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rather than a neutral and impartial arbiter” and that the Deputy Clerks
were probably intimidated and upset by the questioning.

   By 1:30 the same afternoon, Judges Young and Barry issued a temporary
restraining order (“the TRO”) of Judge Young’s drafting, barring Shady
from the courthouse grounds until a hearing set for August 26 at 11:00 a.m.
The TRO stated in part that “evidence indicates that [Shady] will refuse to
obey the lawful commands of the Courts regarding Court business” and
“refuse or sabotage” the Superior Court’s business. Even though Judge
Young was the requestor of the TRO, he presided over the hearing and
did not disqualify or request appointment of a special judge.

   On the morning of August 25, Shady’s attorney called Judges Young
and Barry on the phone, seeking a continuance of the next day’s hearing
and pointing out “that the case was in an odd posture because the judges
were both parties and presiding over the case.” At that point, the Judges
sought advice from counsel for the Commission, who recommended that
the judges “deescalate the situation and work towards a settlement.” By
that afternoon, the TRO was dissolved.


Discussion
  A judicial officer may be disciplined for, among other things, conduct
prejudicial to the administration of justice and violation of the Code of
Judicial Conduct. Ind. Admission and Discipline Rule 25(III)(A). The
Commission bears the burden of proving judicial misconduct by clear and
convincing evidence. Admis. Disc. R. 25(VIII)(K)(6).
   Even though the parties have asked us to adopt the Masters’ findings
and conclusions, we are not bound by their agreement. Rather, we review
the Masters’ report de novo—specifically retaining “discretion to adopt or
reject all or part of the proposed findings of fact, conclusions of law, or
recommended disposition with or without objection by a party.” Admis.
Disc. R. 25(VIII)(P)(3). But even though our review is de novo, we
recognize that the Masters are best positioned to assess witness demeanor
and judge the credibility of conflicting testimony. In re Danikolas, 838
N.E.2d 422, 428 (Ind. 2005). We therefore give their findings special
weight, especially when, as here, their findings are unanimous. Id.


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    Our review of the record shows ample support for the Masters’ findings,
and we find it significant that the parties, after a contested hearing, concur
with those findings. We therefore accept the Masters’ findings, consistent
with the parties’ agreement.

  In turn, the Masters concluded that the Commission had proved all
charged violations of the Indiana Code of Judicial Conduct by clear and
convincing evidence:

    • Count 1 charged that, by enjoining Shady from the courthouse after
      a hearing at which she was not present and of which she had not
       been adequately notified, Judge Young violated Rules 1.12, 1.23, 2.24,
      2.65, and 2.9(A)6.
    • Count 2 charged that Judge Young’s conduct prior to and during the
      August 20 hearing did not reflect patience, dignity, or courtesy and
      did not promote public confidence in judicial impartiality, in
      violation of Rules 1.2 and 2.8(B)7.
    • Count 3 charged that commanding the two Deputy Clerks to appear
      for a hearing without prior written notice of its purpose violated
      Rules 1.1, 1.2, and 2.2.
    • Count 4 charged that presiding over the TRO hearing, when he had
       a specific interest in the subject matter, would lead a reasonable


2“A judge shall comply with the law, including the Code of Judicial Conduct.” Ind. Judicial
Conduct Rule 1.1.
3“A judge shall act at all times in a manner that promotes public confidence in the
independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the
appearance of impropriety.” Jud. Cond. R. 1.2.
4“A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly
and impartially.” Jud. Cond. R. 2.2.
5“A judge shall accord to every person who has a legal interest in a proceeding, or that
person's lawyer, the right to be heard according to law.” Jud. Cond. R. 2.6(A).
6Subject to exceptions not applicable here, “[a] judge shall not initiate, permit, or consider ex
parte communications, or consider other communications made to the judge outside the
presence of the parties or their lawyers, concerning a pending or impending matter.” Jud.
Cond. R. 2.9(A).
7In relevant part, “[a] judge shall be patient, dignified, and courteous to litigants, . . . ,
witnesses, . . . , court staff, court officials, and others with whom the judge deals in an official
capacity . . . .” Jud. Cond. R. 2.8(B).



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       person to question Judge Young’s impartiality in the matter,
       violating Rules 1.1, 1.2, 2.2, and 2.118.
We agree and adopt those conclusions.

   As to sanction, the Masters suggest several aggravating and mitigating
factors. In aggravation, they found that Judge Young’s misconduct occurred
in his judicial capacity; that he lacks insight into the wrongfulness of his
conduct; that Shady and the two Deputy Clerks suffered actual harm
because Shady “was publicly humiliated by the TRO” and the deputies
were “placed in fear of sanction”; and that his misconduct “demonstrated
partiality in the handling of this controversy which undermines the
perception of his impartiality generally.” But they also noted several
factors in mitigation:

    • Judge Young’s “lengthy career in the law and public service” and
      reputation as “reasonable and cooperative” during his time in the
      Indiana Legislature;
    • his “reputation for honesty”;
    • he “mitigate[d] the harm” of his misconduct and “change[d] course”
      by calling counsel to the Commission and following her advice to
      promptly settle the matter;
    • his conduct, while “perhaps indicative of hubris, was not motivated
      by a desire for financial, personal or material gain”; and
    • he “was confronted by a difficult situation created by the Clerk’s
      behavior.”
   Weighing those factors, the Masters recommended that Judge Young
should be suspended without pay for six days, “consistent with the six
days the TRO was in place.” The parties have agreed to that sanction, and
they further agree that costs of these proceedings should be assessed
against Judge Young.

  “The purpose of judicial discipline is not primarily to punish a judge,
but rather to preserve the integrity of and public confidence in the judicial

8 In relevant part, “[a] judge shall disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned,” including when the judge “has . . .
personal knowledge of facts that are in dispute in the proceeding” or “was a material witness
concerning the matter.” Jud. Cond. R. 2.11(A)(1), 2.11(A)(6)(c).



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system and, when necessary, safeguard the bench and public from those
who are unfit.” In re Hawkins, 902 N.E.2d 231, 244 (Ind. 2009). The sanction
must be designed to deter similar misconduct and assure the public that
judicial misconduct will not be condoned. Id. And as we have noted, any
“suspension from office without pay, regardless of duration, is . . . a
significant blemish on a sitting judge's reputation”—more so than a public
reprimand. Id. at 246. In view of those principles, we agree that six days’
suspension without pay and assessment of the costs of these proceedings is
an appropriate sanction.


Conclusion
   The Court orders that the Respondent, Dean A. Young, shall be
suspended from the office of Judge in the Blackford Circuit Court without
pay for six (6) days commencing at 12:01 A.M. on Monday, March 19,
2018. The suspension shall terminate and the judge shall automatically be
reinstated to office at 12:01 A.M. on Sunday, March 25, 2018. The costs of
this proceeding are assessed against Respondent. The Special Masters
appointed in this case are discharged, and the Court commends them for
their conscientious service in this matter.


Rush, C.J., and David, Massa, and Slaughter, JJ., concur.
Goff, J., did not participate.


A TT O RN E YS FO R RES P ON DE NT

Scott E. Shockley
James R. Williams
Muncie, Indiana


ATTORNEYS FOR INDIANA COMMISSION ON JUDICIAL
QUALIFICATIONS

Seth Pruden, Counsel to the Commission
Marcus McGhee, Staff Attorney to the Commission
Indianapolis, Indiana



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