Attorney for Respondent Attorney for The Commission On
Hon. Douglas B. Morton Judicial Qualifications
Martin E. Risacher Meg W. Babcock
Noblesville, Indiana Indianapolis, Indiana
IN THE MATTER OF THE ) HONORABLE DOUGLAS ) Supreme Court Cause No. B. MORTON, Judge of the ) 25S00-0109-JD-435 Fulton Circuit Court ) __________________________________________________________________
JUDICIAL DISCIPLINARY ACTION__________________________________________________________________
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.
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 fathers 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
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 therapists 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
In addition to filing the motion with the clerk of the court and
serving opposing counsel, the fathers attorneys hand-delivered the motion to Respondent. When
they presented Respondent with a copy of the motion, the three engaged in
ex parte conversation.
One of the fathers 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 psychologists 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 fathers 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 Respondents request, the prosecuting attorney never
advised his brother of this contact.
Thereafter, Respondent forwarded the materials presented to him by the fathers 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.
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 Respondents 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 fathers 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
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 fathers 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 mothers attorneys was reviewing what he believed
to be the courts official file and discovered a sub-file captioned (case name)
Criminal Investigation, which happened to be Respondents 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 mothers 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 fathers 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 fathers 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
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 Courts 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 fathers 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 fathers motion to set
aside the prior custody decision, Respondent denied the therapists 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
After three and half days of evidence, Respondent advised the parties that his
inclination was to rule against the fathers 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 therapists 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.
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
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 judges 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 judges impartiality.
In re Edwards, 694 N.E.2d 701, 710 (Ind. 1998). One purpose
of disqualification is to preserve the parties and the publics faith in the
fairness of the system, even when the judge asserts he has no personal
In this case, the combination of all of the facts indicate that a reasonable person would have doubted Respondents impartiality after his failure to disclose the ex parte communication and the referral to the State Police, and after the mothers attorney discovered the sample letter with the Good Hunting note. These facts, coupled with Respondents 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 Respondents long and exemplary judicial service to the citizens of the
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.