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The Indiana Supreme Court has publicly reprimanded Decatur Circuit Judge Timothy B. Day for unauthorized ex parte communications and for failing to take appropriate remedial measures regarding those communications.
The court issued the reprimand Tuesday, roughly four months after the Indiana Commission on Judicial Qualifications filed two disciplinary charges against Day, who has been a judge since 2013.
According to the high court, Day presides over a general jurisdiction docket that includes child in need of services, termination of parental rights, adoption and guardianship cases. In handling such cases in 2020, Day “repeatedly engaged in unauthorized ex parte communications with attorneys representing the Department of Child Services … to the exclusion of guardians ad litem, court-appointed special advocates, and unrepresented parties; and in one instance, (Day) received an ex parte communication from an attorney who frequently represents parents in CHINS cases, without notifying DCS attorneys and other parties.”
Further, during the JQC investigation, Day admitted “that when represented parents would send him ex parte communications, he would shred them without reading them and without notifying the parties or providing them a chance to respond.”
Day and the JQC agreed that he violated four provisions of the Code of Judicial Conduct:
- Rule 1.1, failing to comply with the law, including the Code of Judicial Conduct.
- Rule 1.2, failing to act at all times in a manner that promotes confidence in the independence, integrity and impartiality of the judiciary, and failing to avoid impropriety and the appearance of impropriety.
- Rule 2.9(A), initiating, permitting or considering ex parte communications or other communications made to the judge outside the presence of the parties or their lawyers concerning a pending matter.
- Rule 2.9(B), failing to promptly notify the parties of unauthorized ex parte communication inadvertently received by the judge and to provide the parties with an opportunity to respond.
In considering the appropriate sanction, the parties cited as an aggravator Day’s 2017 public admonishment, handed down after he was accused of twice introducing guns into heated encounters with his estranged wife, leading to police intervention. Day consented to that admonishment in lieu of formal disciplinary proceedings.
As for mitigators, the parties cited Day’s cooperation with the JQC’s investigation, “the steps he has taken to modify his conduct” and his agreement to participate in certain continuing judicial education measures. The parties also agreed that a public reprimand is the appropriate sanction.
In imposing the reprimand, the justices “re-emphasize(d) what our Code of Judicial Conduct requires of judicial officers in this regard. Aside from exceptions narrowly defined in Rule 2.9(A)(1)-(5), a judge shall not initiate, permit, or consider ex parte communications concerning a pending or imminent matter.
“Where an ex parte communication is for administrative, scheduling, or emergency purposes and substantive matters are not addressed, a judge may permit it, but only if the judge (a) reasonably believes no party will gain an advantage from the communication, and (b) promptly notifies other parties of the substance of the communication and gives those parties an opportunity to respond. … (Day) did not follow these strictures,” the court wrote.
If a judge inadvertently receives an unsolicited ex parte communication that is substantive, the justices said Rule 2.9(B) “requires the judge to promptly notify the parties of the communication and given them an opportunity to respond. (Day) likewise did not engage in these remedial measures.”
All justices concurred in the sanction handed down in In the Matter of the Honorable Timothy B. Day, Judge of Decatur Circuit Court, 22S-JD-412.
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