Back in late October, I noted a decision by the Indiana Supreme Court imposing sanctions on a respected Indianapolis lawyer, Michael Wilkins. Acting as local counsel, Wilkins had signed an brief containing language that, in the Supreme Court's view, impugned the integrity of the Court of Appeals panel that had rendered the decision being appealed; the court therefore suspended Wilkins from the practice of law for 30 days.
Perhaps the oddest thing about the original Supreme Court decision (something that escaped my attention at the time, but that New York Times reporter Adam Liptak noted a few days later) was that a decisive vote was cast by the recently elevated Justice Robert Rucker, who had been a member of the three-judge Court of Appeals panel that was the target of the brief's criticism. That oddity led to further proceedings, as Wilkins sought reconsideration of the sanction, as well as Justice Rucker's recusal from further participation in the case. Justice Rucker, who claimed (plausibly in my view, given the number of cases an appellate judge hears) not to have remembered his involvement in the underlying Court of Appeals decision, was quite annoyed by the timing of Wilkins's motion for recusal; in a January 3 opinion responding to the motion, he wrote:
[R]espondent’s failure to raise the issue of my involvement in the underlying Court of Appeals opinion [until now] implies one of three possibilities: (1) the respondent was aware that I had served on the Court of Appeals panel but decided not to press the issue because he was satisfied that I would be impartial in deciding this disciplinary matter; (2) the respondent was aware that I had served on the panel but decided to await the outcome of this Court’s decision on his disciplinary matter and then seek recusal if the decision were unfavorable; or (3) the respondent himself was unaware that I had served on the panel. This latter possibility is highly unlikely given that within days of this Court’s decision both national and local press were reporting it and specifically referencing my involvement in the underlying Court of Appeals opinion. … As for possibility number two, respondent’s lack of timeliness in seeking recusal is troubling. "Counsel . . . may not lie in wait, raising the recusal issue only after learning the court’s ruling on the merits." [Citation omitted]. That leaves possibility number one: respondent was aware that I had served on the Court of Appeals panel but decided not to press the issue because he was satisfied that I would be impartial in deciding this disciplinary matter. If that is in fact the case, then respondent is correct. Nothing has changed except respondent did not receive the result he anticipated.
Despite his obvious irritation, Justice Rucker did recuse himself, concluding that a reasonable observer might question his impartiality. The court then proceeded with its reconsideration, and, as Howard Bashman noted yesterday, the case took another odd twist: two of the justices believed that a lesser sanction of public reprimand should be imposed, while the two who had dissented from the original decision remained convinced that a sanction was inappropriate. A 2-2 split, however, would have meant that the original sanction remained in place; Justice Theodore Boehm therefore chose to vote in favor of a sanction with which he disagreed in order to avoid the imposition of a sanction with which he disagreed even more:
Although the full court addressed the case initially, only four Justices remain to consider the petition to reconsider. Although all four vote to grant rehearing, that action itself does nothing to erase the original disposition, which was a thirty day suspension. If two Justices vote to reduce the sanction to a public reprimand, and two Justices vote for no sanction at all, the result is no plurality for any action on remand, and the original thirty days suspension remains in place. Lewis Carroll would love that result: half the court votes for no sanction, and half votes for a small sanction, so the result is a major penalty. Only those who love the law could explain that to their children. To free parents everywhere from that burden, I join in the vote to reduce the sanction to a public reprimand.
Strange as the case's ending was, I'm more intrigued by Wilkins's failure to note Justice Rucker's participation in the Court of Appeals decision until after the Supreme Court had imposed its sanction. At the very least, Wilkins, as a party deeply interested in the outcome of the sanction proceeding, was very careless in failing to take note of Justice Rucker's prior participation in the underlying case—and there's a faint whiff of something more insidious. Taking the situation as a whole, a public reprimand seems like a fair outcome.