Opposition Brief — McClain v. Indiana Commission on Judicial Qualifications

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| WoOv 7 1996

In the CLERK

SUPREME COURT OF THE UNITED a |

October Term, 1996 )

No. 96-317

In the matter of WILLIAM C. McCLAIN,

Judge of the Vigo County Court

On Petition for a Writ of Certiorari to the

Indiana Supreme Court

BRIEF IN OPPOSITION

OF THE INDIANA COMMISSION

OIN JUDICIAL QUALIFICATIONS

PAMELA CARTER

Attorney General of Indiana

JON LARAMORE

Counsel of Record

Deputy Attorney General

Indiana Gov't Center South, Sth FI.

402 W. Washington St.

Indianapolis, IN 46204

(317) 232-6315

BEST AVAILABLE COPY!

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Questions Presented

The Indiana Supreme Court removed from office

and disbarred William C. McClain, who had been a county

court judge, because McClain engaged in a pattern of

harassment and abuse against a court employee.

1. States have a important interest in maintaining

the integrity of their judiciaries. In this case, the record

supports the determination that the judge participated in a

pattern of harassment of a court employee and her family,

culminating in sending her a used condom containing the

judge's semen. Should this Court grant certiorari from the

Indiana Supreme Court's removal of the judge from office?

2. A three-judge hearing panel made a general

finding that McClain had a good reputation for veracity.

Reviewing the record of the disciplinary proceeding before

the hearing panel, the Indiana Supreme Court found that

McClain had lied in a particular instance. Does the Indiana

Supreme Court's finding deny the judge due process?

3. The penalty assessed by the Indiana Supreme

Court was based in part on the fact that McClain lied to the

hearing panel and sought to frustrate the disciplinary

process by delaying the medical test that proved that his

semen was in the condom he sent to the employee he

harassed. Does the Supreme Court's use of these factors in

determining the appropriate penalty violate due process?

TABLE OF CONTENTS

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Reasons for Denying the Writ .....................04. 5

I. McClain has shown no conflict between courts

IT.

If.

or significant federal issue meriting this Court's

intervention in the State's judicial disciplinary

oo yey prereset eee a 5

The masters did not find that McClain's testimony

in this case was credible, so the Indiana Supreme

Court's determination that he lied presents no

SOGRl COUN a acs ccd cecacavakunvassoneets 5

The Constitution does not prohibit consideration

of specific circumstances in fashioning a penalty,

so the Indiana Supreme Court's reliance on

McClain's fabrications and delays is proper in

establishing his penalty ...................65. 7

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Table of Authorities

Cases

Committee on Professional Ethics v.

Horn, 379 N.W.2d 6 (Iowa 1985) ......................

In re Kaine, 424 N.W.2d 64 (Minn.

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Matter of Gantt, 286 S.C. 550, 335

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Middlesex County Ethics Comm. vy.

Garden State Bar Ass'n, 457 U.S. 423

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Office of Disciplinary Counsel v.

Wittmaack, 513 Pa. 609, 522 A.2d

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People v. Gibbons, 685 P.2d 168

RE RE OSE PCO te ee

United Siates v. Dunnington, 507

a I fay SE RR

United States v. Raddatz, 447 U.S.

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Wade v. United States, 504 U.S. 181

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Wasman v. United States, 468 U.S.

Cis vacedkuudins slunelabhs Gheteeaucsscanessduce

Wisconsin v. Mitchell, 508 U.S. 476

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Constitutional Provisions

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Other Authorities

Sentencing Guidelines § 3C1.1 (1995) ...................0008. 8

Sentencing Guidelines § 3E1.1 (1995) .................. 8

Sentencing Guidelines § 5K1.1 (1995) .................. 8

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Rules and Regulations

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: In the

SUPREME COURT OF THE UNITED STATES

October Term, 1996

No. 96-317

In the matter of WILLIAM C. McCLAIN,

Judge of the Vigo County Court

On Petition for a Writ of Certiorari to the

Indiana Supreme Court

BRIEF IN OPPOSITION

OF THE INDIANA COMMISSION

ON JUDICIAL QUALIFICATIONS

Statement of the Case

William C. McClain was removed as a state trial

judge and suspended from the practice of law for harassing

a court employee. McClain was charged with willful

misconduct in office by engaging in a pattern of harassment

and abuse against the employee, her family and boyfriend.

3a.

Masters’ Proceeding

Pursuant to charges filed by the Indiana Judicial

Qualifications Commission, the Indiana Supreme Court

"appointed three masters to hear evidence. Their findings

are summarized in the following paragraphs.

McClain gave the employee, L.H., two $100

monetary gifts. 27a. He gave no similar gifts to any other

employee. 6a. McClain once asked her to have dinner

with him, and he told her she would fit in well with his

family. Jd. L.H. and her boyfriend observed McClain

sitting in his truck outside her apartment. 27a.

Someone made efforts to break up L.H.'s

relationship with her boyfriend. Someone made an

anonymous call to L.H. telling her that her boyfriend didn't

love her. 28a. L.H.'s father received two similar calls.

Id. These calls contained specific details about L.H. that

McClain knew, although others might have known some of

the details as well. 30a.

In April 1991, L.H. received an anonymous letter

that contained a used condom and made vulgar accusations

against her boyfriend. Jd. The letter suggested that L.H.

leave her boyfriend.

The used condom mailed to L.H. contained

McClain's semen, as shown by a DNA test ordered by the

Indiana Supreme Court and confirmed by an independent

test McClain obtained. Jd. At the hearing before the

masters, McClain's cousin testified that he had obtained the

condom from a waste basket and mailed it to L.H. 30a.

The masters did not decide whether the cousin's account

was truthful.

After hearing evidence, the masters concluded that

the Indiana Commission on Judicial Qualifications had

failed to prove by clear and convincing evidence that

McClain had harassed L.H. 31a. The Commission filed

objections to the masters' report, McClain replied to the

objections. The Indiana Supreme Court ruled de novo on

the objections. 4a.

Indiana Supreme Court Proceeding

The Indiana Supreme Court adopted all fifty-seven

of the masters’ findings of fact, but not their conclusions of

law. The Indiana Supreme Court found clear and

convincing evidence in the record that McClain participated

in the harassment of L.H. and her family. 5a. It

specifically found clear and convincing evidence that

McClain had participated in sending the harassing phone

calls and letter to L.H. 19a. The court found this conduct

amounted to judicial misconduct and violated Indiana

Judicial Canons 1 and 2. Jd.

The Indiana Supreme Court found that McClain's

gifts to L.H., his dinner invitation and other remarks to her

went beyond the usual employer-employee relationship. 6a.

The Indiana Supreme Court further noted that

McClain denied sitting in his truck outside L.H.'s

apartment. 7a. McClain's denial was contradicted not only

by L.H. and her boyfriend, who saw him there, but by two

other Vigo County judges. The two judges testified that

McClain told them he had been in the area to investigate an

anonymous tip of "trouble." 7a. The Indiana Supreme

Court concluded that McClain "concocted" his story about

the anonymous tip to justify his presence outside L.H.'s

apartment. 8a. McClain's lies to fellow judges were

designed to hide his interest in L.H., the court determined.

9a.

Nor did the Indiana Supreme Court believe

McClain's "incredible tale" that his cousin mailed the

condom and harassing letter to L.H. 16a. The court

summarized the story as follows: "in furtherance of a plot

to get even with [L.H.'s boyfriend] for some old grudges,

McQueary [McClain's cousin] took a used condom out of

his wastebasket which he thought to be his own but which

had actually been put there by [McClain], who was using

McQueary's house for sexual liaisons while McQueary was

on a trip to Tulsa; McQueary then put the condom in a

sandwich bag, delivered it to a now deceased friend, who

then had an unnamed female write an obscene note

purportedly dictated by McQueary, after which the whole

disgusting package was put together and sent to

McQueary's friend, [L.H.], with the dead and unknown

co-conspirators thinking it was all a practical joke." 15a.

McQueary did not come forward until McClain was

required to take a blood test to prove the origin of the

condom, and all potential corroborating witnesses for

McQueary's story are conveniently unavailable. Jd. Also,

despite his kinship and close friendship with McClain,

McQueary purports to have kept completely quiet for two

years about his central role in the episode that put

McClain's career in jeopardy. 16a. The Indiana Supreme

Court found "this eleventh hour tale of vengeance and

coincidence to be unbelievable .. ."_ 17a.

The Indiana Supreme Court removed McClain from

his judicial office and suspended his law license for a period

no less than two years. 20a. - The court's sanction was

based in part on McClain's obstructive conduct, including

the creation of a false defense to the charges against him.

The court found that McClain's false defense reflected

directly on McClain's integrity, "the essence of the judicial

vocation." 20a.

REASONS FOR DENYING THE WRIT

McClain has shown no significant federal issue or

conflict between courts meriting this Court's

intervention in the State's judicial disciplinary process.

Nothing about this case makes it worthy of this

Court's consideration. McClain has identified no conflict --

and there is none -- between the Indiana Supreme Court and

any other court on any significant federal issue. See Sup.

Ct. R. 10.1(b). Indeed, the sanction is wholly consistent

with disciplinary actions taken in other jurisdictions. Nor

does the decision below present a noteworthy federal

question that warrants review by this Court. See Sup. Ct.

R. 10.1(c).

In fact, federalism principles counsel against

certiorari in this case because judicial discipline is an

important state function with which federal courts should

interfere in only the rarest of cases. Middlesex County

Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423,

432-33 (1982). In Indiana, judicial discipline is committed

solely to the Supreme Court by the State Constitution,

showing its significance. Ind. Const. art. 7, § 4. This

Court should permit Indiana to protect its citizens from

misconduct by state court judges without interference abseut

a very substantial federal constitutional issue.

Il.

The masters did not find that McClain's testimony in

this case was credible, so the Indiana Supreme Court's

determination that he lied presents no federal question.

Contrary to McClain's characterization, the Indiana

Supreme Court did not disregard the masters’ credibility

findings, so this case presents no federal issue as to that

claim. Rather, the Indiana Supreme Court adopted the

masters’ factual findings, including their findings on

credibility, and determined that the record showed clear and

convincing evidence of judicial misconduct as a matter of

law.

The Indiana Supreme Court merely decided that all

of the facts in the record constituted clear and convincing

evidence of judicial misconduct. The court did not reject

the masters’ credibility findings. The masters found that

McClain had a good general reputation for truthfulness.

They did not find that McClain (or McQueary) told the

truth in this case.

As the Indiana Supreme Court wrote: "The Masters

found [McClain] had a reputation in the community for

truthfulness and honesty. However, this does not preclude

a finding of specific instances of dishonesty in his

testimony, and we find that [McClain] was untruthful

concerning his conduct and relationship with [L.H.]." 9a

(citation omitted). This determination is an application of

Indiana law, and it raises no federal question.

Thus, even if this Court were to hold that a

reviewing body could not alter the factual findings of the

fact-finder who heard testimony, such a holding would not

change the outcome of this case. Cf. United States v.

Raddatz, 447 U.S. 667, 673 (1980) (under Fed. R. Civ. P.

72, district courts’ review of magistrates’ findings is de

novo, but district courts need not re-hear testimony). The

Indiana Supreme Court did not reject the masters'

credibility finding about McClain, which was only as to his

general reputation for truthfulness, so the question posed by

McClain is not presented by this case.

ea ne RL eae ee

Il.

The Constitution does not prohibit consideration of

specific circumstances in fashioning a penalty, so the

Indiana Supreme Court's reliance on McClain's

fabrications and delays is proper in establishing his

penalty.

Nothing in the Constitution prohibited the Indiana

Supreme Court from considering the specific circumstances

of McClain's case, including his fabricated defense, in

sanctioning him. It is well-established that a court may

consider the specific circumstances of a case and an

offender in determining what penalty is proper. Wisconsin

v. Mitchell, 508 U.S. 476 (1993); Wasman v. United States,

468 U.S. 559, 563 (1984).

In this case, the Indiana Supreme Court based its

sanction in part on McClain's obstructive conduct,

including his resistance to blood testing and his concoction

of a false defense, because these matters reflected adversely

on the integrity of the judiciary. The Indiana Supreme

Court noted that attorneys and judges have affirmative

obligations under applicable disciplinary rules to cooperate

with investigai’ ns. The court properly reasoned that a

judge should be held to a higher standard than an average

citizen and that his attempts to obstruct the judicial

disciplinary process reflected poorly on the integrity of the

judiciary.

McClain had an independent duty to cooperate with

the Judicial Qualification Commission's investigation. See

Ind. R. Prof. Conduct 8.1. An attorney's failure to

cooperate in the disciplinary process is a separate offense

under the rules, and it may lead to additional sanctions.

Committee on Professional Ethics v. Horn, 379 N.W.2d 6,

9 (Iowa 1985); In re Staab, 719 S.W.2d 780, 783-84 (Mo.

1986). Even in the criminal context, cooperation may

favorably affect a sentence. Wade v. United States, 504

U.S. 181,185 (1992); 18 U.S.C. § 3553(e); Sentencing

Guidelines §§ 3E1.1(a), SK1.1.

The Indiana Supreme Court also based its sanction

in part on McClain's lies about how the condom came to be

transmitted to L.H. McClain's argument depends on his

contention that he did not lie, although the Indiana Supreme

Court found that he did. 15a-16a. In essence, McClain

now asks this Court to re-try the factual accuracy of his

defense. Petition at 13.

Providing false evidence to disciplinary authorities

violates rules of professional conduct and justifies

discipline. See, e.g., In re Kaine, 424 N.W.2d 64, 65

(Minn. 1988); Office of Disciplinary Counsel v. Wittmaack,

513 Pa. 609, 522 A.2d 522, 530-31 (1987); Matter of

Gantt, 286 S.C. 550, 335 S.E.2d 241, 242 (1985); People

v. Gibbons, 685 P.2d 168, 175 (Colo. 1984). Even in the

criminal context, courts may base sanctions on the

defendant's specific conduct during the proceeding. When

a defendant lies at his trial, a court is justified in enhancing

his sentence. United States v. Dunnington, 507 U.S. 87

(1993); United States Sentencing Comm'n, Sentencing

Guidelines Manual § 3C1.1 (1995).

Nor did the Indiana Supreme Court penalize him for

asserting his Fourth Amendment right, assuming a judge

has a valid Fourth amendment claim when asked to submit

to medical testing in a judicial discipline proceeding. In

assessing its sanction, the Indiana Supreme Court noted

McClain's "obstructive and uncooperative posture toward

the Commission's investigation." 20a. These delaying

tactics consisted not of McClain's assertion of his rights,

but rather of McClain's on-again-off-again agreement to

take the blood test and his lengthy delay in providing the

Commission with the written results of the DNA test

performed by his own expert. lla. McClain's refusal to

timely provide the results of his independent DNA tests on

the condom in discovery would, by itself, support the

Indiana Supreme Court's finding of lack of cooperation.

In this case, the Indiana Supreme Court acted well

within established national practice when it shaped

McClain's sanction partly on his false story to the

Commission and his attempts to obstruct the investigation

by delaying his blood test and failing to provide his

independent DNA test results in discovery. It did not

sanction him for asserting his constitutional rights, and the

Court should not grant certiorari to review a question not

presented by the case. His petition for certiorari presents

no issue worthy of review.

Conclusion

This Court should deny the petition for writ of

certiorari.

Respectfully submitted,