In the Matter of the Honorable Robert W. Freese, Judge of the Hendricks Superior Court 1 , 123 N.E.3d 683 ( 2019 )

FILED
Jun 04 2019, 11:27 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 19S-JD-52
In the Matter of the Honorable
Robert W. Freese, Judge of the
Hendricks Superior Court 1,
Respondent.
Decided: June 4, 2019
Judicial Discipline Action
Per Curiam Opinion
All Justices concur.
Per Curiam.
We find that Respondent, the Honorable Robert W. Freese, Judge of the
Hendricks Superior Court 1, engaged in judicial misconduct by appointing
an unqualified friend as trustee of a trust and personal representative of a
related estate, failing to disclose the friendship or a financial relationship
with the friend, and failing to act promptly when faced with mounting
evidence of the friend’s mismanagement and embezzlement of the funds
entrusted to him.
The matter is before us on the Indiana Commission on Judicial
Qualifications’ (“Commission’s”) “Notice of the Institution of Formal
Proceedings and Statement of Charges” against Judge Freese. After the
filing of formal charges, the parties jointly tendered a “Statement of
Circumstances and Conditional Agreement for Discipline” stipulating to
the following facts.
Stipulated Facts
Judge Freese has been judge of Hendricks Superior Court 1 since 2001,
presiding over a docket that includes trust and estate cases. He has known
Stephen Scott since about 1990, having worked with Scott in the county
prosecutor’s office, where Scott supervised Adult Protective Services.
(Scott had also been a sheriff’s deputy at the county jail.) Judge Freese
lunched regularly with Scott and considered him one of his closest friends.
In 2004, Scott needed $122,400 to buy a home but had poor credit after a
bankruptcy. Judge Freese used his line of credit to lend Scott the funds.
On January 13, 2005, they executed and recorded a mortgage in that amount,
and Scott gave the Judge a promissory note.
Seventeen days later, Judge Freese appointed Scott as trustee over the
Herbert Hochreiter Living Trust in Trust of Herbert Hochreiter, No. 32D01-
9710-TR-000003. None of the parties objected, but the Judge never
disclosed his financial arrangement with Scott.
Later in 2005, Herbert Hochreiter died, and an estate was opened with an
estimated $2.3 million in real and personal property. Judge Freese took the
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matter under advisement after a hearing, and on October 24 appointed
Scott as personal representative of the Estate. As before, none of the parties
objected, nor did the Judge disclose his financial arrangement with Scott.
As trustee, Scott was required to provide an annual accounting of trust
property, including all receipts and disbursements. Indiana Code § 30-4-5-
12(a). Moreover, the court was permitted “either on petition or on its own
motion” to “require the trustee to submit such proof as it deems necessary
to support the trustee’s verified written statement of accounts.” I.C. § 30-4-
5-13(b) (emphasis added). And though the Trust was created as an
unsupervised trust, its terms specifically required annual reporting and
accounting. Yet from 2006 through November 2009, Scott provided no
annual accounting of Trust assets.
Similarly, Scott as personal representative of the Estate was required to
file a verified account of administration “upon filing a petition for final
settlement,” “upon the revocation of his letters,” “upon his application to
resign and before his resignation is accepted by the court,” and “at any
other time when directed by the court either of its own motion or on the
application of any interested person.” I.C. § 29-1-16-3 (emphasis added).
On June 12, 2007, when the Estate had been pending for nearly two
years, Judge Freese advised Scott a final report and accounting was due.
Scott requested a 180-day extension (which the Judge granted) but still did
not file a final report and accounting. Continuing through 2009, Scott
repeatedly disregarded the Judge’s directives to file accountings in the
Trust and Estate cases.
In December 2009, Scott filed a partial, defective Trust accounting; and
through newly-hired counsel, he sought an extension to January 29, 2010.
The Judge granted the extension over objection of one of the beneficiaries,
who was concerned that certain gold bars might be missing from the Trust
and that Scott had disregarded accounting requirements from the outset.
In January 2010, Scott asked to withdraw as trustee and have the court
appoint a successor trustee. The beneficiaries objected to Scott resigning
without submitting a complete accounting and filing tax returns and other
appropriate legal documents. Judge Freese gave Scott 30 days to respond
to the objection, but Scott relocated to Florida and never responded.
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The beneficiaries ultimately agreed to allow Scott’s counsel to serve as
successor trustee and personal representative, and counsel agreed to share
information from his files and from an accounting firm to complete an
accounting within 60 days. The Estate had been open nearly five years
when Judge Freese signed that order in August 2010.
From then through July 2012, the Judge had multiple indications of
Scott’s poor performance: Summonses sent to Scott were returned to
sender. Scott’s counsel requested the court’s guidance and intervention,
reporting that Scott was unresponsive and that the Trust checking account
contained only $8.27 and its savings account had been closed for over 6
months—when counsel estimated it should have $50,000 to $60,000 in cash.
And one of the beneficiaries filed a detailed objection and multiple rules
to show cause or contempt citations against Scott. Judge Freese “took no
action or minimal action” on those reports. But while the cases were
pending and Scott was living in Florida, he left Scott a phone message
stating he was concerned that Scott was behaving bizarrely, and that he
“would never have thought [Scott] would have stolen anything.”
On July 31, 2012, when the cases had been pending nearly seven years,
Judge Freese ordered Scott to appear in person and bring all financial
records to a September show-cause hearing. The hearing was later
rescheduled to November, but Scott failed to appear, and Judge Freese
found him in contempt and found he had permitted substantial amounts
of money to be removed from the Trust for non-Trust purposes.
In January 2013, after a damages hearing, the Judge entered judgment
against Scott for nearly $580,000, finding:
• Between September 2007 and August 2011, there were
disbursements totaling $140,550 from Trust accounts to Scott’s
personal accounts, plus another $101,217 in wire transfers or cash
withdrawals not corresponding to legitimate disbursements;
• In January 2010, $16,800 was transferred from Estate accounts to
Scott’s personal account; and the Estate’s remaining bank balance of
$6,517.08 was taken by unexplained cash withdrawal;
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• The amounts directed to Scott’s accounts should be trebled as punitive
damages (to $421,650 and $50,400, respectively)—for a total judgment,
including the remaining un-trebled sums, of $579,784.08.
Judge Freese never referred those findings to the local prosecutor or to
the United States Attorney. But Scott pleaded guilty in 2017 to federal
charges stemming from his embezzlement, which took place from August
2007 through July 2011. The stolen funds remain unrecovered.
Discussion
The Commission charges, and Judge Freese agrees, that his conduct
violated four provisions of the Code of Judicial Conduct:
• Rule 1.2, requiring judges to avoid impropriety and act at all times in
a manner promoting public confidence in the judiciary’s integrity;
• Rule 2.4(B), prohibiting judges from allowing (as relevant here) social
relationships to influence the judge’s judicial conduct or judgment;
• Rule 2.5(A), requiring judges to perform judicial and administrative
duties competently, diligently, and promptly; and
• Rule 2.13(A)(1), requiring judges (in relevant part) to exercise the
power of appointment impartially and on the basis of merit.
As mitigators, the parties’ agreement identifies the Judge’s lengthy and
distinguished judicial career, active leadership in judicial, legal, and civil-
service organizations, lack of prior disciplinary history, cooperation with
this investigation, and remorse. They also agree his misconduct was not
deliberate or willful and brought him no financial benefit or personal gain,
and that the Judge relied on the attorneys to file pleadings in the Trust
because it was unsupervised. But the Judge also acknowledges I.C. § 30-4-
5-13(b) allowed him to act on his own motion, and that in retrospect he
should have acted sooner given the information available to him.
Citing no aggravators, the parties agree that an appropriate sanction is
a 45-day suspension without pay, plus assessing costs of this proceeding
against Judge Freese. “A suspension from office without pay, regardless of
duration, . . . is a significant blemish on a sitting judge’s reputation.” In re
Hawkins, 902 N.E.2d 231, 246 (Ind. 2009). And “a suspension without pay
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for more than a few weeks in most cases will be tantamount to a forced
resignation.” Id., 902 N.E.2d at 249 (Boehm, J., dissenting). A 45-day
suspension, then, is a very severe sanction. But we agree it is appropriate
here.
Unlike typical violations of Rule 2.4(B), the Judge’s misconduct was
mostly negligent, not willful. See, e.g., In re Johanningsmeier, 103 N.E.3d 633(Ind. 2018) (failing to recuse from, and improperly intervening in, a close
friend’s traffic infraction case, even after a prior caution); In re Van Rider,
715 N.E.2d 402 (Ind. 1999) (failing to recuse from son’s criminal case,
instead ordering him released from jail on his own recognizance). And it
involves one case, while most Rule 2.5(A) violations stem from systemic
neglect. See, e.g., In re Brown, 4 N.E.2d 619 (Ind. 2014) (failing to complete
necessary paperwork, making court files difficult to locate); In re Kouros,
816 N.E.2d 21 (Ind. 2004) (failing to promptly issue orders in criminal cases
despite this Court’s prior remedial orders aimed at those ongoing failures).
But the Judge’s misconduct ultimately enabled a massive theft. First,
appointing Scott violated Rule 2.13(A)(1)’s duty to make “appointments . . .
impartially and on the basis of merit”—he lacked fiduciary experience and
had been bankrupt recently enough to have poor credit. Subjectively, the
Judge trusted Scott, as his loan shows. But objectively, Scott was utterly
unqualified to be entrusted with a third party’s money; appointing him
seems to have been driven by friendship, not merit. Then, that friendship
clouded the Judge’s objectivity through seven years of warning signs—
making him unreasonably credulous of, and lenient towards, Scott in the
face of growing evidence of serious financial misconduct. If not for the
Judge’s inaction, Scott’s theft likely could have been largely prevented.
Our precedent illustrates that suspensions longer than 30 days reflect
extremely serious judicial misconduct, just shy of what might warrant
removal from office. For instance, we accepted a Conditional Agreement
for a 60-day unpaid suspension when a judge wrongfully accused an
attorney of attempting to cheat taxpayers in response to a perceived
challenge to an improper, ex parte attorney-fee award, and became
embroiled in a public political campaign against the county council. In re
Boles, 555 N.E.2d 1284, 1285–87 (Ind. 1990). Three Justices detailed the
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judge’s long-running pattern of blatantly injudicious behavior, but found
his community involvement, lack of dishonesty, and eventual apology were
mitigating. Id. at 1289–91. But two Justices dissented and would have
removed the judge from office. Id. at 1292 (Pivarnik and Givan, JJ.,
dissenting).
More recently, a judge repeatedly delayed post-conviction cases by
failing to organize the files or review his commissioner’s orders—in one
instance, prolonging a prisoner’s incarceration by nearly two years.
Hawkins, 902 N.E.2d at 241, 247. After balancing the serious harm caused
against the judge’s “outstanding reputation . . . for fairness, honesty, and
integrity,” commitment of service to courts and his community including as
public defender, remorse, and implementation of remedial measures (and
that his commissioner was primarily at fault), we rejected the Special
Masters’ recommendation of removal from office. Id. at 243–44. But while a
majority of the Court imposed a 60-day suspension, id., two Justices would
have imposed a one-year suspension. Id. at 247–48 (Shepard, C.J.,
dissenting), 248–49 (Sullivan, J., dissenting).
Two other cases in which we accepted Conditional Agreements
illustrate the gravity of even a 30-day unpaid suspension. The judge in In
re Cox had a long-running, express policy of giving longer sentences to
defendants who had jury trials instead of bench trials or pleading guilty—
and sentenced one defendant without disclosing his criticism of her in a
disciplinary action she had brought against her former attorney. 680
N.E.2d 528, 529–30 (Ind. 1997). And the judge in In re Young routinely
misinformed traffic defendants about the State’s burden of proof and
penalized those who went to trial more harshly as a deterrent to others—
and in one instance refused to let a defendant accept a plea agreement and
plead guilty. 943 N.E.2d 1276, 1277–80 (Ind. 2011).
The parties here have agreed to a 45-day suspension—squarely
between the above guideposts. “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 system and, when necessary, safeguard
the bench and public from those who are unfit.” Hawkins, 902 N.E.2d at
244 (Ind. 2009). The sanction must be designed to deter similar
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misconduct and assure the public that judicial misconduct will not be
condoned. Id. As the above cases illustrate, a 45-day suspension from
office without pay is a very serious sanction, but we agree it is warranted
here, in view of the serious harm to the Trust and Estate that were enabled
by the Judge’s misconduct.
Conclusion
The Court orders that the Respondent, Robert W. Freese, shall be
suspended from the office of Judge in the Hendricks Superior Court 1
without pay for forty-five (45) days commencing at 12:01 A.M. on July 8,
2019. The suspension shall terminate and the judge shall automatically be
reinstated to office at 12:01 A.M. on August 22, 2019. This discipline
terminates the disciplinary proceedings relating to the circumstances
giving rise to this case. The costs of this proceeding, which the parties
stipulate to be $1,460.00, are assessed against Respondent.
All Justices concur.
ATTORNEY FOR RESPONDENT
James J. Bell
Indianapolis, Indiana
ATTORNEYS FOR INDIANA COMMISSION ON JUDICIAL
QUALIFICATIONS
Adrienne L. Meiring, Counsel to the Commission
Marcus McGhee, Staff Attorney to the Commission
Indianapolis, Indiana
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