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Indiana Judges Association: Are changes needed to ‘change of judge’ rule?

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IJA-Dreyer-DavidOnce upon a time, there was a corporation that wanted to sue a lot of other corporations in Indiana. After the lawsuit started, one defending corporation moved for an automatic change of judge under Indiana rules. The case was re-assigned, and a different defending corporation moved to dismiss, citing related out-of-state litigation and the like. After about a year and a half of briefing, arguing and procedural running in place, the motion was denied. So the moving corporation filed its own automatic change of judge motion. But the judge said “no, y’all already got one change, can’t have another.” Then, all the defendants went to the Indiana Supreme Court and convinced it to let them have another change of judge. And when the change was made randomly by the local clerk, the case ended up with the original judge where it started way back when. No one seemed to notice and no one seemed to care.

This is a true story.

An objective observer would have to conclude that the parties did not really care who the judge was – they must have had some other strategic reason for delay, or wanted to discharge a judge who ruled against them once and might again, or some other reason. But the whole basis for an automatic change of judge is rooted in the ideal that you can get one free pass on a judge you think is biased, and be excused from having to allege or prove bias, especially when that judge is the one who gets to decide if you are right. It has now become necessary to reconcile the ideal with the reality: Changing judges as a gaming litigation strategy has nothing to do with who the judge is or any actual bias.

According to our Division of State Administration, there may have been as many as 3,500 automatic change of judge motions in Indiana over each of the last two years. This is almost 10 times over for each judge in the state and about 5 percent of the most commonly filed civil cases. That’s a lot of changing. Are there that many parties and lawyers who have that many problems with that many judges? Or is it just a small group of biased judges that are changed from virtually all of their cases? Or, more likely, is it a growing strategy of lawyers and litigants that is largely unrelated to actual provable bias?

Originally, the National Center of State Courts reports, automatic change of judge procedures arose as far back as the 1800s to stem problems in less populous communities where only one judge ruled and he or she knew literally everybody. It also allowed defendants to “unpick” judges picked by plaintiffs. Former Chief Justice Randall T. Shepard has traced the Indiana history and found automatic change motions emerging in the 1950’s when the profession recognized them as preferable over the friction bred by disqualification motions. But Maurer School of Law professor Charles Geyh, former director of the American Bar Association’s Judicial Disqualification Project and judicial ethics expert, says that only about 20 states have automatic change of judge rules, and those are almost all west of the Mississippi (where Judge Judy lives, so they need it). He sees a more central problem, that is, we are “divided over when it is reasonable for the presumption of impartiality to yield to the suspicion that extralegal influences may have compromised the judges’ impartial judgment.” If judges are presumptively neutral, how best to litigate a change of the few who are not?

While Professor Geyh acknowledges the delay game now grown into automatic change of judge procedures, he believes the best solution is found by providing disqualification motions be decided by a neutral judicial officer, not the targeted judge, which increases the legitimacy of disqualification procedures and thus increases pubic confidence in courts’ impartiality. “They should not be grading their own papers,” says Professor Geyh.

The ABA finds, naturally, that disqualification motions are less common in states with automatic change rules. But if we adopt procedures like Professor Geyh suggests, do we still need the obvious downsides of delay now inherent in automatic change? Tom Carusillo, the director of Trial Court Services in our State Court Administration, reminds us that Indiana changed its rule just this year by removing the striking panels. The old rule allowed the discharged judge one privilege before he or she left the case: listing the judges for the parties to pick. The striking panels are now gone, says Carusillo, because data showed significant delays and confusion in many cases. In addition, former Chief Justice Shepard recalls that similar considerations led to the repeal of automatic change of venue rules and restricted automatic changes in child-related matters.

So, it is worth wondering why we need automatic change of judge rules and if the trend is going against them. After all, we judges don’t get an automatic change of counsel. And believe me, there are times when we could really use one. So if we can live without it and be responsible professionals, why can’t lawyers? Just sayin’ … .•

__________

Judge David J. Dreyer has served on the Marion Superior Court since 1997. He graduated from the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association.

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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