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Small-claims change of judge time limit further divides appellate courts

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How long a small-claims court litigant has to request a change of judge is a question that divided a Court of Appeals panel Monday, where a majority found that an earlier appellate panel majority got it wrong. The dissenting judge authored the prior opinion, and said it shouldn’t be disturbed even if it may have been wrongly decided.

A panel of the Court of Appeals reversed a Lake County case arising from a property damage accident in which damages awarded after a bench trial were less than $3,000. But the judge in the case erroneously ruled a plaintiff’s motion for change of judge untimely. The panel remanded Amy Palmer v. Margaret Sales and Unique Insurance Company, 45A03-1302-SC-31, ordered a change of judge and implementation of procedures for choosing a new judge, and ordered the case moved to the plenary docket.

Judge Terry Crone wrote the majority opinion joined by Judge Patricia Riley that found the law improperly applied and perhaps improperly formulated.

“We agree that the small claims court erred by finding that (Palmer’s) request for a change of judge was untimely. The small claims court had relied on McClure v. Cooper, 893 N.E.2d 337 (Ind. Ct. App. 2008). We disagree with the majority opinion in McClure, which gives the defendant only three days after receiving the notice of claim to request a change of judge. In any event, McClure is distinguishable because the notice of claim sent to Palmer did not properly notify her of the trial date.”

The majority sided with Judge James Kirsch’s dissent in McClure, in which he found that Trial Rule 76(C)(5) should govern the amount of time a litigant has to ask for a change in judge.

Judge Mark Bailey concurred in part and dissented in part, finding that Palmer properly moved for a jury trial but was denied, so the matter should be moved to the plenary docket as the majority did. But Bailey wrote that the panel shouldn’t have reached the change of judge question, and he noted that since Palmer acknowledged liability, the only question for the court should be damages.

“In recognition of our judicial role and as a matter of policy, it seems wise to me not to reach matters beyond those necessary for resolution of a case. Because we can resolve this appeal without disturbing existing precedent, based upon the trial court’s erroneous denial of a jury trial, we ought not to address McClure,” Bailey wrote, noting the rule of stare decisis stands for the proposition of not disturbing findings of the same court absent urgent reasons or clear error.

“(U)pon reflection, I agree that McClure may have been wrongly decided, though I reach that conclusion on a different basis from the majority. Simply put, even though the opinion I authored in McClure narrowly construed the time limits in Trial Rules 76(B) and (C) (providing for change of judge as a matter of right and without cause), on reflection I do not think the provisions of those rules properly apply in the small claims dockets of our state. Therefore, I think McClure likely reached the wrong conclusion,” Bailey wrote.

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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