IN
THE INDIANA SUPREME COURT
STATE OF INDIANA ex rel. )
SANDRA S. KAUFMAN, )
relator, )
v. ) cause no. 45S00-0203-OR-186
)
THE LAKE CIRCUIT COURT, et al., )
respondents. )
PUBLISHED ORDER
This matter has been pending before the Court on Relator’s Petition for Writ
of Mandamus and Writ of Prohibition. The Court has reviewed the petition
and other application papers filed by Relator, as well as the responses and
other materials filed in this proceeding. The Court has also met in
conference and discussed this matter.
Relator asserts that the Circuit Court had a duty to prohibit J. Douglas
Angel, the court’s “coordinator,” from appearing as counsel in that court and then
moving for a change of judge to avoid any appearance of impropriety or
undue influence. Relator relies in part upon Indiana Commission on Judicial Qualifications
Advisory Opinion #1-00 (Nov. 22, 2000). The advisory opinion addresses the rule
that prohibits continuing and periodic part-time judges from practicing in the courts on
which they serve, a rule that is set out in the Indiana Code
of Judicial Conduct, Application Sections (C)(2) and (D)(2). The opinion states that
a continuing or periodic part-time judge may not enter an appearance or file
any pleading in the court on which the judge serves, even to take
a change of judge or to file a notice of appeal from that
court. This Court agrees with that part of the advisory opinion.
Anyone who is an officer of a judicial system and who performs judicial
functions is a judge within the meaning of the Indiana Code of Judicial
Conduct. See Ind. Code of Judicial Conduct, Application Section (A). It
is not clear from this record whether Angel in fact performed judicial functions
while serving as court “coordinator,” but it appears likely that at least some
judicial functions were performed. In any event, it is problematic when a
court employee—performing judicial functions or not—appears in the court that employs him and
then moves for a change of judge long after his client’s right to
an automatic change of judge expired under Indiana Trial Rule 76.
A court employee’s appearance as counsel in that court creates an appearance of
impropriety or undue influence, and the employee should not appear.
Notwithstanding the above, this Court decides that Relator’s petition should be denied based
on a separate consideration. A relator seeking a writ of mandamus or
prohibition must do so “expeditiously after the jurisdiction of the respondent court became
an issue[.]” Ind. Original Action Rule 3(A); see State ex rel. Petry
v. Madison County Superior Court, Div. No. 3, 573 N.E.2d 884, 885 (Ind.
1991). Here, the Circuit Court’s order allowing Angel to appear and its
order granting the change of judge were issued on June 20, 2001.
The Superior Court’s order denying Relator’s motion to reconsider and her request for
interlocutory appeal were denied during a hearing on September 21, 2001. Measured
from either of these two dates, Relator’s delay until March 19, 2002, in
seeking the writ was not expeditious.
Accordingly, because the Relator has failed to demonstrate that she acted expeditiously in
seeking a writ, the Court DENIES her petition. The parties are reminded
that no petitions for rehearing or motions to reconsider may be filed.
See Orig. Act. R. 5(C).
The Clerk is directed to send a copy of this order to the
Honorable Lorenzo Arrendondo, to the Honorable John R. Pera, to J. Douglas Angel,
to Debra Lynch Dubovich, to Bruce A. Kotzan, to the Attorney General of
Indiana, and to West Group for publication among the reported decisions of this
Court, and to LexisNexis.
Done at Indianapolis, Indiana this
23rd day of May, 2002.
/s/ Randall T. Shepard
Randall T. Shepard
Chief Justice of Indiana
All Justices concur.