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Attorney for Respondent            Attorney for The Commission
Hon. Jerry F. Jacobi                on Judicial Qualifications

Raymond J. Hafsten, Jr.                Margaret W. Babcock
Indianapolis, Indiana                Indianapolis, Indiana                
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IN THE INDIANA SUPREME COURT

IN  THE MATTER OF THE                                                             )          HONORABLE JERRY F.                                                                        )    Supreme Court No. JACOBI, Judge of the                                                                      )     10S00-9903-JD-185  Clark Superior Court                                                                     )       ________________________________________________________________________               
                                                                                       
JUDICIAL DISCIPLINARY ACTION                                                      
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September 9, 1999
                                                        
                                                                                       
Per Curiam
                                                                             This matter comes before the Court as a result of a judicial disciplinary action      brought by the Indiana Commission on Judicial Qualifications (“Qualifications        Commission”                                                                           ) against the Respondent herein, Jerry F. Jacobi, judge of Clark SuperiorCourt 1.  Article 7 Section 4 of the Indiana Constitution and Indiana Admission and       

Discipline Rule 25 give the Indiana Supreme Court original jurisdiction over this matter.    Subsequent to the filing of formal charges by the Qualifications Commission, theparties jointly tendered a Statement of Circumstances and Conditional Agreement forDiscipline which the Court approved by written order. The parties have agreed to thefollowing background information and stipulated facts.

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Background
    The Clark County Board of Commissioners, the City of Jeffersonville, the City ofCharlestown, the Town of Clarksville, the Clark County Council, the Town ofSellersburg, the Town of Borden, and the Town of Utica adopted in 1998 an InterlocalAgreement for the sharing of governmental and management functions over the federalexcess property known as the Indiana Army Ammunition Plant (INAAP). Pursuant to theInterlocal Agreement, these governmental bodies created the INAAP Reuse AuthorityBoard to manage the Ammunition Plant's 4,600 acres when the Army transferred theproperty to the Reuse Authority.
    In April 1998, again pursuant to the Interlocal Agreement, the Town of Utica andthe City of Charlestown appointed James Witten to the Reuse Authority Board. OnAugust 10, 1998, the Clark County Commissioners removed Witten from the ReuseAuthority Board. Witten's removal by the Commissioners created a dispute among theCounty Commissioners and the cities and towns who were parties to the InterlocalAgreement.
    On August 12, 1998, the Town of Utica, by attorney Larry Wilder, filed a petitionfor a temporary restraining order (TRO), seeking to restrain the Commissioners fromremoving James Witten and from appointing a successor.
    On that same day, Respondent granted the request for a TRO after an ex parte conference with Wilder and the Utica Town Board president, Glen Murphy. Respondent

also set a hearing for August 21. Then, on August 13, the Respondent sua sponte disqualified himself and named a panel of three potential special judges from outsideClark County. After the striking process did not produce a special judge, the HonorableRichard G. Striegel of the Floyd Superior Court was assigned as special judge by theAdministrative District Assignment Judge. A hearing on the preliminary injunction washeld on August 21 before Judge Striegel. He issued an order, pursuant to the agreementof all parties, which returned James Witten to the Reuse Authority Board.

Stipulations of the Parties
    On the morning of August 11, the day before the TRO petition was filed and theday after the Commissioners removed Witten from the Reuse Authority, a meeting tookplace. Present at the meeting were the Utica Town Board President (Glen Murphy), theJeffersonville Mayor, the Utica Town Attorney (Larry Wilder), the Charlestown CityAttorney, the Jeffersonville City Attorney, James Witten, and Reuse Authority Boardmember Ned Phau. During the meeting, the parties discussed the prospect of filing aTRO petition in response to the Commissioners' removal of Witten.
    Over the noon hour, Respondent had lunch with his bailiff, Harry Wilder, at aJeffersonville Pizza Hut, during which they were joined by Glen Murphy. A witness hasstated she was seated two tables away and overheard them discussing a "lawsuit." TheRespondent's statement is that the discussion, in which he did not participate, was about afederal lawsuit.

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     On the evening of August 11, Respondent was again in the company of Murphy,and of the attorney for the Town of Utica, Larry Wilder (bailiff Wilder's son), at a localestablishment. They were awaiting an evening swearing-in by Respondent of the newUtica Town Marshall. After the swearing-in ceremony, the Utica Town Council met inregular session. At that Town Council meeting, the proposed filing of the TRO petitionwas approved. Respondent left the evening event before the Utica Town Councildiscussed the lawsuit.
    The next day, Larry Wilder presented Respondent with the petition for a temporaryrestraining order, which he filed in the office of the clerk at 4:28 p.m. before taking it tothe judge's chambers. Court offices generally close at 4:30. Wilder and Glen Murphythen met with Respondent in the judge's private office for approximately one hour, duringwhich time they discussed the need for the TRO. As noted above, the TRO petition wasultimately granted by Respondent.
    Contrary to Trial Rule 65(B) pertaining to temporary restraining orders,Respondent granted the ex parte relief without a written certification from Larry Wilderindicating the efforts he made to serve the Commissioners or their counsel with notice, orof the reasons why notice should not be required. Although the parties cannot agree onwhether any service of notice actually was made, Larry Wilder has stated that he directedhis secretary to walk the papers to the office of the attorney for the Commissioners at thesame time Wilder walked to the courthouse to seek the TRO, and she states she did so.

However, the attorney for the Commissioners, Daniel Moore, states that no notice wasgiven on August 12 of the petition or of any hearing thereon, and that he did not knowWilder was seeking a TRO that afternoon.
    Respondent made no independent effort to contact Moore and, again, Wilder madeno certification of his efforts to give notice. Moore's telephone number was known toRespondent and to Wilder and Moore had been in the Clark Superior Court 1 courtroomon a case with a special judge until sometime between 4:00 and 4:30. Moore hadconversed with Respondent just prior to his 3:30 hearing before the special judge. Respondent stated in his order granting the TRO, "[T]he Court finds that the ClarkCommissioners, by its attorney, Daniel Moore, has been served with notice of thispetition by same being provided to him in person."
    Respondent was at the time of the granting of the petition seeking the TRO, andfor many years preceding that action, a close personal friend of Murphy and of the Wilderfamily. He had socialized with Larry Wilder and had lived for a period of time in thesenior Wilder's house. At the time the TRO was issued, Respondent employed Wilder'sfather, Harry, as his bailiff. He previously had employed another son of Harry Wilder ashis probation officer.
    Respondent recused himself from this case after naming a panel of proposedspecial judges from outside Clark County, contrary to the applicable Local Rule 25,which calls for the district's Assignment Judge to appoint a special judge within five days

of a regular judge's disqualification. He has stated he recused himself because he felt noClark County judge should be involved in the merits of this political dispute.
    The parties agree that the failure to obtain from Wilder his certification that noticehad been made, or of what efforts he had made to give notice, or of the reasons notice wasnot required, along with the judge's failure to make a simple inquiry to attorney Moore'soffice to determine whether he was available to meet with the judge and Wilder about thepetition seeking a TRO, joined with the close personal relationship among Wilder,Murphy, and Respondent, including their significant contacts on the preceding day duringwhich the TRO petition was being planned by Murphy, Wilder, and other Clark Countymunicipalities that subsequently joined the Utica litigation, created a significantappearance of impropriety and potentially threatened the public's confidence in thejudicial system.
    The parties agree that Respondent violated Canon 1 of the Code of JudicialConduct, which generally requires judges to uphold the integrity and independence of thejudiciary; Canon 2(A), which generally requires judges to avoid impropriety and theappearance of impropriety, to respect and comply with the law, and to act at all times in amanner which promotes the public's confidence in the integrity and impartiality of thejudiciary; and Canon 3(B)(2), which generally requires judges to be faithful to the law.

Sanction
    The parties have further agreed, as does the Court, that the appropriate sanction for

this misconduct is a three day suspension from office without pay. The costs of thisproceeding are assessed against Respondent.
All Justices concur.

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