A CASE OF JUDICIAL DISABILITY

The NWI Times dedicated front page ink in its April 20, 2016 issue to the ongoing health travails of Hammond City Court Judge Jeffrey Harkin. It was reported that Judge Harkin had appointed a court referee as “special judge” of the Hammond City Court due to Judge Harkin’s “health issues.” The article mentioned that Governor Pence would be responsible for naming a replacement “if Harkin is unable to continue to serve.” But what of the special judge? What role does the Indiana Supreme Court play? It was time for me to read some law.

The most familiar provision in rule or statute pertaining to a disabled judge is Indiana Trial Rule 63(B) which allows a judge (including a city or town court judge) to report his own disability to the Indiana Supreme Court. The late Superior Court Room Four Judge Gerald Svetanoff reported his own disability under TR 63(B)(1). The likely result in such a case is the appointment (by the Indiana Supreme Court) of a judge pro tempore to serve until: (a) the term of office is ended; (b) the office becomes vacant; or (c) the judge’s disability is shown to have ceased. Notably, a judge who has been replaced by a judge pro tempore must file a petition to the Indiana Supreme Court and submit proof of his recovered fitness before any restoration to his office.

Though I believe its use to be extremely rare, Trial Rule 63(B)(2) allows a person (other than the judge) to file a verified petition to the Indiana Supreme Court reporting or alleging a judge’s disability. If such a petition is filed, the rule requires a response from the judge, and a hearing may be scheduled.

While Trial Rule 63(B) speaks of a judge pro tempore appointed by the Indiana Supreme Court, the Times article described a “special judge” appointed by Judge Harkin. How could this be?

The answer to my rhetorical question resides in Indiana Code 33-35-2-1(b) applicable to city and town court judges and providing that such judge who is “temporarily absent or unable to act” shall appoint a “reputable practicing attorney” to preside as “special judge.” While TR 63(B) fairly well defines the duration of the appointment of a judge pro tempore, the cited statute suggests that a “special judge’s” appointment is temporary without additional guidance. My first speculation here is that “temporary” means a period of time much shorter than the forty-four months remaining on Judge Harkin’s current term. My second speculation is that the Indiana Supreme Court would (if a justiciable case came before it) probably hold that TR 63(B) supercedes the cited legislation.

If there is value in maintaining control over his replacement (presumably a temporary replacement) and avoiding Supreme Court scrutiny of his return to the bench (after resolution of any disability), then Judge Harkin made a well-advised election to invoke the statute rather than the court rule. Judge Harkin’s choice to invoke the statute is seen here as less controversial in that his special judge is the capable and well-regarded Gerald Kray. Pending Judge Harkin’s recovery or further developments, the Hammond City Court should be in good hands.

Should Judge Harkin’s absence be prolonged, there would be at least two enticing questions. The first is whether the Indiana Supreme Court would intervene to name a judge pro tempore, as it did (for instance) in the case of Lake Station City Judge Christopher Anderson when he was unavailable by reason of his (successful) campaign for the office of Mayor. The second enticing question is whether (and when) Governor Pence might intervene to declare a vacancy and exercise his appointment power under Article 5, Sec. 18 of the Indiana Constitution. (Judge Harkin himself first reached the City Court bench by gubernatorial appointment to fill a vacancy.) Governor Pence would presumably appoint a fellow Republican to replace the Democrat Judge Harkin. I would be hard-pressed to compile a list of more than two Republican lawyers with the requisite Hammond domicile.

The political theater generated by Judge Harkin’s absence began early with Mayor McDermott’s seizure of control of the City Court’s Graffiti Removal Program. While I certainly appreciate the entertainment value of political theater and acknowledge the potential for much more should Judge Harkin’s absence be prolonged, please join me in wishing Judge Harkin a timely recovery.

 

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