In February, in a blog entry entitled, “Designated Hitter,” Keffer Hirschauer LLP blogged about using retired Supreme Court Justices or other judges to fill-in on the Supreme Court in circumstances where a sitting justice recuses him or herself from a particular decision. http://www.kefferbarnhart.com/Blogs/2017/February/Designated-Hitter.aspx.
That issue resurfaced last week when the Indiana Supreme Court denied transfer in SP, et al. v. Indiana Department of Child Services, which concerned a not-for-publication decision issued on November 7, 2016. http://www.in.gov/judiciary/opinions/pdf/11071602jsk.pdf. In that case, the Supreme Court denied transfer with Justices Rucker and Massa voting to deny transfer, Chief Justice Rush and Justice David voting to grant transfer, and Justice Slaughter not participating in the decision. Because the Court was evenly divided on whether to grant or deny transfer, the petition to transfer is deemed denied. See Ind. Appellate Rule 58(C).
While recusals and abstentions by justices and judges are rare, they do happen. That is particularly the case with newer justices who may see cases they have been involved in during their career prior to taking the bench. Indiana should consider a statute and/or rule that address the imbedded disadvantage that occurs when a Supreme Court Justice recuses him or herself on a case that is pending transfer.
Looking for an Indiana appellate attorney that understands your criminal and appellate rights? Contact the attorneys at Keffer Hirschauer LLP today if you have questions or believe your constitutional or criminal rights have been violated. We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their individualized case. Act now and contact us today at 1-800-NOT-GUILTY or (317) 857-0160.