Once 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.