Wednesday, April 16, 2014

Different Processes Govern Special Judge Appointments for Criminal and Civil Cases

June 16, 2010 by Lilia G. Judson , Tom Carusillo

Indiana rules of procedure and case law allow for the appointment of special judges under certain circumstances.  The process for selecting judges can sometimes be confusing because it varies depending on the type of case and the reason a special judge is needed. In civil cases, different steps must be followed depending on whether the regular judge granted a motion for a change of judge or because the regular judge disqualified and recused from the case. The rules provide an entirely different process for criminal, post conviction relief, infraction, and ordinance violation cases.  This article is intended to summarize the applicable rules and to highlight the differences in the appointment processes.

Civil Cases

The primary language governing the special judge appointment process in civil cases is found in Trial Rule 79.  That rule provides several steps for selecting a special judge but also provides that the courts of record in each county must have local rules for the selection of special judges when selection under T.R. 79 fails to produce a special judge.

Appointment of a special judge in a civil case becomes necessary in one of two ways: (1) the regular judge grants a motion for a change of judge under Trial Rule 76, or (2) the regular judge disqualifies or recuses from the case under Trial Rule 79(C). The method by which the regular judge steps down from the case governs how the special judge is appointed. At the outset, it’s important to distinguish between an appointment strictly under TR. 79, which a judge is not required to accept, and an appointment under a local rule, which is automatic and which a judge cannot refuse.

Trial Rule 76
Change of Judge
Trial Rule 79
Disqualification/Recusal
1 T.R. 79(D): Selection by agreement of the parties. The selected judge has 15 days to decide whether to accept the case. T.R. 79(G). 1 T.R. 79(D): Selection by agreement of the parties. The selected judge has 15 days to decide whether to accept the case. T.R. 79(G).
2 T.R. 79(E): With the agreement of the parties, selection by the trial court judge. The selected judge has 15 days to decide whether to accept the case. T.R. 79(G). 2 T.R. 79(E): With the agreement of the parties, selection by the trial court judge. The selected judge has 15 days to decide whether to accept the case. T.R. 79(G).
3 T.R. 79(F): Naming of a striking panel by the trial court judge. The selected judge has 15 days to decide whether to accept the case. T.R. 79(G). 3 T.R. 79(F): Striking panels are not used is Disqualification/Recusal cases.

4 T.R. 79(H): In the event a judge is not selected under (D), (E) or (F), then a selection is made pursuant to local rule. The selected judge must accept the case unless disqualified, ineligible or excused. 4 T.R. 79(H): In the event a judge is not selected under (D) or (E), then a selection is made pursuant to local rule. The selected judge must accept the case unless disqualified, ineligible or excused.
5 If no judge is eligible to serve under the local rule selection process or the particular circumstance warrant, then the matter may be certified to the Supreme Court for selection. 5 If no judge is eligible to serve under the local rule selection process or the particular circumstance warrant, then the matter may be certified to the Supreme Court for selection.

A. After a Motion for A Change of Judge is Granted

When a motion for a change of judge has been granted, the court should first determine if the parties have agreed on a special judge, as provided in Trial Rule 79(D).  Failing that, the court should determine whether the parties have agreed to permit the trial court judge to name a special judge, as provided in Trial Rule 79(E). Such an agreement must be in writing, and the selected special judge has 15 days to decide whether to accept the case.  In each of these situations the judge selected does not have to take the case. If the above two options  do not produce a special judge willing to take the case, then the trial judge must name a panel of three judges from which each of the parties strikes a name. The trial judge then appoints the person whose name remains on the list as the special judge.  As in the first two instances, the judge remaining on the panel is appointed as special judge but he or she does not have to take the case.  The appointed special judge must take an affirmative step and file an acceptance in order to assume jurisdiction of the case.

If after going through the three steps set out in Trial Rules 79(D), (E) and (F) (an agreement by the parties on a special judge, an agreement for the trial judge to name a special judge and the naming of one panel), a special judge still has not accepted jurisdiction, the selection of a special judge must proceed under the local rule.  It is very important to note that there can be only one striking panel appointed under T.R. 79, and the judge remaining on this panel has the option to decline a case. Some older local rules also call for an appointment by a panel.  This procedure is not appropriate and these rules should be amended. However, until these existing rules are amended, a judge who is selected from a panel under a local rule must take the case and cannot decline appointment. Trial Rule 79(H) provides that:

A person appointed to serve as special judge under a local rule must accept jurisdiction in the case unless the appointed special judge is disqualified pursuant to the Code of Judicial Conduct, ineligible for service under this rule, or excused from service by the Indiana Supreme Court. Trial Rule 79(H). The order of appointment under the local rule shall constitute acceptance. (Emphasis added).

Thus, a person selected as special judge pursuant to a local rule does not have the option to decline to take the case, and there is no affirmative step that he or she needs to take. In order not to have to take a case, a special judge appointed under a local rule must either establish disqualification under the Code of Judicial Conduct, be ineligible under  Trial Rule 79(J), or be excused by the Supreme Court.

It’s also important to note that having been a member of a panel for selection does not disqualify a person from being a special judge. Trial Rule 79(J) provides that any regular judge of a circuit, superior or probate court, a senior judge or a magistrate, including a person who has been a member of a panel for selection, is eligible for appointment as a special judge.  But if the judge, senior judge (who is appointed by the Supreme Court to serve in the court where he or she will be senior judge) or magistrate has previously served as judge or special judge in the case, is disqualified by interest or relationship, or is excused by the Supreme Court, the judge is not eligible to serve.  However, when a judge grants a change of venue from the county, that judge is eligible to serve as a special judge in the new county even if the judge has already served in the county from which the change of venue was taken, but only if the judge granting the change of venue, the receiving judge, and all the parties to the case agree to such appointment.

The local rules for selection of special judges must provide for appointment of eligible special judges who are: (1) within the county’s administrative district; or (2) from a contiguous county outside the administrative district and have agreed to serve as a special judge. This latter provision is new, becoming effective January 1, 2010, and permits the naming of special judges from  counties outside the administrative district that are contiguous to the county needing the special judge.

B. Disqualification/Recusal

Prior to July 1, 1995, upon the recusal of a judge, a special judge was selected either by certifying the case to the Supreme Court or by the recusing judge naming a three member panel from which the parties struck. Since that time, the selection process has changed, and a special judge can be selected only by agreement of the parties, agreement of the parties for the recusing judge to name a special judge, or pursuant to local rule.  Although the authority of the recusing judge to name a panel has long since been eliminated, some judges are caught unaware.  This is the major difference in how special judges are selected when the trial court judge has recused or is disqualified as opposed to when the judge grants a motion for change of judge. In cases where there has been a disqualification or recusal, it is never appropriate to name a striking panel. In disqualification and recusal cases selection of a special judge is first attempted using the procedures in Trial Rules 79(D) and (E). Should these fail, the next step is under Trial Rule 79(H); Trial Rule 79(F) is not used. With this important exception, the selection process in the same as in change of judge cases.

In either change of judge cases or disqualification/recusal cases, a case should only be certified to the Supreme Court for the appointment of a special judge when all of the procedures outlined above have been attempted, or the particular circumstances of the case warrant.

Criminal Cases

Special judge appointments in criminal cases follow an entirely different set of procedures. Criminal Rules 2.2 and 13 combine to provide the process for selecting special judges in criminal cases.  Criminal Rule 2.2 calls for the promulgation of local rules that provide for the non-discretionary assignment of felony and misdemeanor cases and provisions for the continued assignment of a judge in the event of dismissal and for the reassignment of the case in the event a change of judge is granted or the judge disqualifies or recuses from the case.

Criminal Rule 13 sets out how criminal cases shall be reassigned and special judges selected.  In counties with four of more judges who receive assignment of felony or misdemeanor cases, upon the granting of a change of judge, disqualification or recusal of the trial court judge, the special judge is selected in the same manner as the initial judge was assigned under Criminal Rule 2.2.

In counties with fewer than four judges, the local rule must contain an alternative list of judges from contiguous counties and senior judges who are assigned to the court that can be named as special judges.

It is important to note that, under C.R. 2.2 magistrates, commissioners and referees are not listed as being eligible to serve as special judges in criminal cases.  Further, the rules governing the selection of special judges in criminal cases do not allow selection by agreement of the parties. In addition, the rules do not allow the use of striking panels.

If selection of a special judge pursuant to local rule fails or the particular circumstance warrant, only then should a criminal case be certified to the Supreme Court for appointment of a special judge.  As with civil cases, a judge who has served in a case is not eligible for appointment as special judge, except that whenever a court has granted a change of venue to another county, the judge granting the change may be appointed as special judge for the case in the receiving county if the judge granting the change, receiving the change and all the parties to the case agree to such appointment.

Continuation of Service

A special judge serving in any cases retains jurisdiction of the case through judgment and post judgment matters, including proceeding to enforce judgment or modify or revoke orders, unless (1) a specific statute or rule provides to the contrary or (2) the special judge is unavailable by reason of death, sickness, absence, or unwillingness to serve.  When a special judge ceases to act for any reason except the granting of a motion for change of judge, different rules again apply to civil and criminal cases.  In a civil case, the regular judge of the court where the case is pending shall assume jurisdiction, provided that the judge has not previously served in the case and is not otherwise ineligible.  If the regular judge cannot take the case, the parties can agree on a special judge and, if that fails, selection must proceed under the local rule.  If a special judge grants a motion for a change of judge, then the parties can agree on a successor special judge, agree for the special judge of the case to appoint a successor, go through the striking panel process, and, failing that, proceed under the local rule.

In a criminal case, if the special judge ceases to act for any reason, further reassignment and selection of a successor special judge is accomplished pursuant to a local rule.

Conclusion

The selection of a special judge in either civil or criminal cases can be easily achieved by carefully following the procedures set forth in the applicable rules. However, should you still be uncertain on how to proceed, do not hesitate to contact State Court Administration for assistance by contacting:

Tom Carusillo at 317-232-2542 or by email at tcarusil@courts.state.in.us

or Jim Maguire at 317-233-3018 or by email at jmaguire@courts.state.in.us.