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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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