Because a man failed to file an affidavit concerning why he wanted a change of judge in a code violation case, as required by statute, the Indiana Court of Appeals reversed the grant of his request for a change of judge.
Health and Hospital Corporation of Marion County filed a complaint for injunction and a fine against Dennis Foreman based on allegations a residence he owned did not meet certain HHC code requirements. Foreman filed a pro se motion for change of judge. HHC objected, citing the statute that outlines the process for HHC-related proceedings.
The trial court granted his motion, which led to this interlocutory appeal.
The Court of Appeals held that the holdings in State ex rel. Blood v. Gibson Circuit Court, 239 Ind. 394, 400, 157 N.E.2d 475, 478 (1959), and Sayeed v. Dillon, 573 N.E.2d 468, 471 (Ind. Ct. App. 1991), apply to this case.
Citing I.C. 16-22-8-31(e), Judge Melissa May wrote, “the requirements of filing, specifically that Foreman file an affidavit alleging the reason for the change of judge, are substantive because they apply to the requirements for special types of actions, such as those initiated by the HHC.”
“As in Sayeed, considering the specialized nature of HHC cases, we believe the legislature, in enacting Ind. Code §16-22-8-31(e) and requiring the extra step of providing an affidavit regarding the reason for the request for change of judge pursuant to Ind. Code § 34-35-3-3(b), intended to supersede the more lenient provision regarding change of judge in T.R. 76,” she wrote.
The case, Health and Hospital Corporation of Marion County v. Dennis Foreman, 49A02-1504-OV-229, is remanded for further proceedings.