TR 53.1 and 53.2 - Missed the memo...

Much to say on this issue and my experience.

Let me again caution here that I am not an attorney by education or licensed to practice law. So if you find yourself in any legal conflict, please talk to someone who can appropriately guide you. Hopefully the following will encourage you even more to seek qualified representation.

About the Rules

Indiana Trial Rules 53.1 and 53.2, are commonly called "The Lazy Judge Rule[s]." They are simply meant to give clear guidance for next steps to parties before a court that is not providing a timely ruling. If a judge has not ruled on a motion within 30 days, or determined an issue held under advisement within 90 days, or has other waivers of the deadlines, a party can request transfer out of that court, which I did. Welch's response, according to the Indiana Supreme Court, constitute breach of judicial conduct, maybe even breaking the law. And she did it twice!




A praecipe, or request for action, is sent to the trial court. The clerk of the trial court is required forward the request along with the chronological case summary (CSS) to the Chief Administrative Officer (CAO) of the Indiana Office of Judicial Administration. I don't know the specifics, but it appears the CAO is the highest administrator of all Indiana courts. The CAO determines if the ruling is delayed. If so, TR 53.1(E)(2) instructs:
"If the CAO determines that a ruling or decision has been delayed beyond the time limitation set forth under Trial Rule 53.1 or 53.2, the CAO shall give written notice of the determination to the judge, the Clerk of the trial court, and the Clerk of the Supreme Court of Indiana that the submission of the case has been withdrawn from the judge. The withdrawal is effective as of the time of the filing of the praecipe. The Clerk of the trial court shall record this determination in the Chronological Case Summary under the cause and provide notice to all parties in the case. The CAO shall submit the case to the Supreme Court of Indiana for appointment of a special judge or such other action deemed appropriate by the Supreme Court." [emphasis mine]

TR 53.1(F) instructs the resigning judge within 10 days to "fully state the nature of the matters held in excess of the time limitations" in a written report.

Having numerous cases proceed through to trial just to get reassigned to new judges at the end would reduce court efficiency. But in situations where a ruling may be delayed, the rules should then motivate a judge to seek an extension allowed under the rules. In Strutz v. McNagny, 558 N.E.2d 1103 (Ind. Ct. App. 1990) the Court stated clearly that, "The purpose of the lazy judge provision is to expedite litigation..." Frequent exercise of the lazy judge rules resulting in reassigning of numerous cases requiring a new judge to get up to speed, and possibly adding additional hearings, would not "expedite litigation." So it can be inferred that the rule should motivate judges to not be lazy in the first place, and to request a waiver if unable to rule in time. In short, it should certainly motivate a judge to keep track of the calendar and work load, or risk professional consequences.

Links to the trial rules:

Trial Rule 53.1. Failure to rule on motion
Trial Rule 53.2. Time for holding issue under advisement; delay of entering a judgment

Guidance to courts and judges on the rules:

• Failure to Rule on a Motion & Delay of Judgments[Trial Rules 53.1 & 53.2]*
• Chapter 13 of Trial Court administrative guidance dated May 15, 2012
• #2-07 Advisory Opinion, Code of Judicial Conduct, Canon 3: Trial court's inability to rule on Trial Rule 53.1 and 53.2 motions**
• "The Commission occasionally reviews complaints against judges alleging that they, rather than the Clerks, have ruled on Trial Rule 53 motions or have, upon the filing of Rule 53 praecipes in which delays have occurred, set the delayed hearings or ruled on the delayed motions. These complaints often raise valid concerns that the judges have violated Canons 1 and 3B(2) of the Code of Judicial Conduct, which require judges to respect and comply with the law." 
• "Judges should not interfere with this process, although they and their staff should assist the Clerk, if necessary, in the Clerk’s determination." 
• In now revised rules, the Clerk is replaced with the CAO to keep the Clerk from having to tattle on their judge, per the next link.
• A New Process for Withdrawing Jurisdiction Due to Delay in Ruling, Oct 31, 2011

My Experience
Judge Heather Welch heard arguments on Valeo's motions for Summary Judgment, and for Discovery Sanctions (later post), and my Leave to Amend Answer on July 21, 2017. The 30-day deadline for Welch's ruling was Sunday, August 20, 2017, making the deadline Monday, August 21st. After wasting Tuesday obsessively hitting refresh on my browser, I knew I couldn't handle another day of that. So I looked at Indiana Trial Rules and found 53.1.

After reading this post, I prepared a request under TR 53.1, hoping to motivate Judge Welch to rule, which helped me to stop obsessing. If her ruling was dated the same day my request was recorded, I figured the CAO should allow the ruling to stand--again the rules exist "to expedite litigation." So I sent it regular mail, which would make the received date, the record date. The record date on certified mail is the mailing date per Ind. TR 5(f).


Even if I had been certain a new trial judge would be more advantageous to me, I had no desire to start over. I didn't want Hull to have the opportunity to restart numerous requests for hearings on unending procedural matters, necessitating many more 6 hour round-trips to to Indy.*** I was confident with how Welch would rule, and how I would respond. That was preferred to preparing for and representing myself in a trial opposing Hull. The direct application to the higher court offered a side benefit of tipping off someone in authority on potential violations of due process issues in advance of having to prepare and file a formal complaint. But, as usual, God knew something else was coming...


On Wednesday, August 23rd, two days late, Judge Welch issued a ruling on the summary judgment motion. My petition was recorded the following day on Thursday, August 24th. By Tuesday, August 29th, no activity showed on the application for transfer, so I sent this online form message to the Clerk of the Indiana Appellate and Supreme Courts. They replied on Wednesday, August 30th, that they had not received the request.







What happened next, exceeded the most cynical machinations I could then fathom.

On Thursday, August 31st, Judge Heather Welch issued an order, in what appears to be an undeniable violation of the rule, denying my petition for transfer.

Let's revisit this:

"The Commission occasionally reviews complaints against judges alleging that they, rather than the Clerks, have ruled on Trial Rule 53 motions..."
"...These complaints often raise valid concerns that the judges have violated Canons 1 and 3B(2) of the Code of Judicial Conduct, which require judges to respect and comply with the law." [emphasis mine]

So the judge has no authority to rule, and filed complaints have a "valid concern" that the judge has violated two canons of the Code of Judicial Conduct.

So what was Judge Welch doing? Is she just unaware of the Code she swore to abide by? Is she incompetent and not capable to understand? Did she forget? Did she, or another party connected to her, have concerns about the CAO reviewing the praecipe? Did she fear withdrawal to a new judge, who would review the case history, and what they would find?

I honestly have no idea why she denied it, nor does the reason matter to me. One specific matter that I will address later, could have concerned Welch, but I don't know. While I had the ruling I was waiting for, I kept thinking about Welch's denial. As during most of this lawsuit, the following quote (most often attributed to Edmund Burke), kept coming to mind:

"The only thing necessary for the triumph of evil was that good men should do nothing."

Now I don't consider myself to be a white knight, or even a dark one, and I certainly don't believe that I am inherently good by myself while other people are evil. That would directly conflict with my religious beliefs. I believe the only thing good about me is what God has graciously and mercifully cleaned up, and the actions where I am obedient to what is being asked of me, instead of those that are vain or from selfish ambition. So considering the quote in light of what my non-attorney mind believes to be a violation, I felt compelled to point it out, and hopefully prevent mishandling of future "lazy judge" requests for those who really need it.

So on August 31st, I filed a Motion to Correct Error with the trial court, including a copy of the above directive, and a copy of the email correspondence with the CAO. I also served (sent) it to the CAO, the trial clerk, and the Indiana Supreme Court--all certified mail this time. To help Judge Welch understand her error, I cited the rules.








On September 12th, Hull filed a response opposing my motion.












I would like to think that Welch paid close attention, noticed the other parties who were served, and understood the rules. Because on September 12th, she denied my Motion to Correct Error!

Now I have no other real court experience, but if this is typical of Indiana judges, I fear for anyone in any situation going before any court in Indiana. Judge Heather Welch was put in charge of the new commercial court for Marion County (more in a later post). Given her actions, unless this noob is misreading the rules, I find this very disturbing.

I really tried to help her. So if Welch's second denial is from misunderstanding the rules, or the limit of her authority, it clearly calls into question her fitness to serve as a judge at any level. But if not incompetency, that is an even greater cause for concern. 

This chapter of my saga was resolved on September 21st. The CAO denied the transfer. I just now noticed that the ruling is dated September 7th for some reason, but was not received and recorded by the trial court until the 21st. I am amazed by the time it takes a letter to be mailed 3 blocks in Indy.

Anyway, for me, I initiated this part of the saga because I wanted to get a ruling. And I got that. Not sure I will ever fully know why this became such a big deal on this side of eternity. If I do, we'll all find out together!



My Observations
Consider the actual implications of this rule. My casual observation is that it would be professional suicide for an attorney to actually file this on a judge if there is any chance the attorney may appear in front of them again. If you are an attorney wanting a late judge to rule, consider increasing steps like contacting the clerk and letting them know you are waiting for a ruling that is past due. If no response there, verbally inform the clerk that you need the ruling by a later date "and may have to consider allowable recourse under TR 53.1 if that doesn't happen." If no other options, send it regular mail to the court allowing the judge a chance to file a ruling on the same day. Make sure it is likely to arrive on a day they are in the office. But at that point, you may want to change from being a trial attorney.

In some situations that I have read about, pro-se litigants feel they have been treated unfairly by the court, and are hoping TR 53.1 and 53.2 is their means to getting a fair judge. Everything I read makes it clear these rules exist only to motivate judges to timely rule and to "expedite litigation." The very existence of the rules does provide that motivation to judges to avoid professional embarrassment before the high court. Once a judge has ruled, even if a fire needed to be lit under them, if a litigant believes the ruling was wrong, the recourse is the appellate process. If the ruling is reasonable, but you have concerns regarding the judge, the recourse is to file a complaint. The same is true of an attorney (more on that later as pro-se removes a means of keeping opposing counsel in-line). Consider that you may want to wait until after the lawsuit is fully over and time for appeal is done before filing a complaint. But you will want to accumulate information. So make sure to record any conversations / meetings, and communicate by email whenever possible.

Again, given that "The purpose of the lazy judge provision is to expedite litigation..." Strutz v. McNagny, 558 N.E.2d 1103 (Ind. Ct. App. 1990), attempting to use the rule for any other purpose, or with any other hoped for outcome, is likely wasted energy / expense / risk.

In Welch's case, she had good reason while attending to far more consequential and enticing cases at the time such as Indiana v. IBM and Simon Property Group v. Starbucks (more on those later). So it is not unreasonable that she was late. Even so, 53.1(B)(2)&(3) offer exceptions that she could have pursued if she was unsure of being able to meet the deadline. But again, the real issue from my perspective (and I believe that of due process) is not her being a few days late. Being late, by the very existence of "the lazy judge rules" presuming delayed rulings will happen suggest it is not a material violation of Judicial Code of Conduct. Nor do the rules suggest any discipline for an offending judge. My actual concern is Welch having denied the transfer, which (as above) appears to be a clear violation of Canons 1 and 3B(2). Her action, especially repeated, should cause concern for Welch's fitness to serve as a judge.

Even after all this I have come full circle. In the middle of the above events and my shock, I was considering how the "lazy judge rules" might be improved. In hindsight, the rules wisely accomplish the stated goal of expediting litigation, even if not actually used. They provide a credible threat of professional humiliation. In the worst case, if a judge won't rule, then a new judge is found. Certainly if a judge has a habit of delaying, and has a few of these filed against them, the burden on other judges will certainly motivate peers to help them improve or get them removed.

I was also considering how to advise others to file a request without fear of being denied. But in reality, the ONLY goal and purpose of the rules is to get the judge to rule. If you believe the ruling from the judge is incorrect, the proper recourse is an appeal. In my case, after Welch's ruling on venue early in this lawsuit (more later), I was focused on keeping my powder dry and preserving good arguments for an appeal. And that's where we are at right now. Even a remand, even back to Welch should provide better discretion (except for this blog post). Still, I would hope for more balance than exceeding her authority twice. If not, that will be more to blog about!****

Finally, consider that taxpayers could fund a much larger judicial system than is typically needed, but will still be full in periods like the aftermath of the Great Recession when Indiana courts were overwhelmed with foreclosures. Or the court system can be more prudent, acknowledging that there will be periods when courts may be overwhelmed. In those periods, it is important that the rights of litigants are reasonably balanced with the rights of taxpayers. The "lazy judge rules" are a fair balance meant to accomplish their goal without undue burden and waste to peer judges unless and until it is clearly necessary given the inadequacy of an individual judge.

*From the Indiana Trial Court Administration Manual for Judges and Clerks updated 7/18/17
**Advisory Opinion from Judicial Qualifications Commission
*** In many cases, Hull would request a hearing and then request continuance a few days before. Of course a 6 hour round-trip didn't allow for me to schedule meetings. So even a continued hearing is an inconvenience. Why am I being sued in Indy? That's for a different post.
****Indiana attorneys have to be careful. Professional Conduct Rule 8.2 deals with impugning the integrity of a judge. This is one more area where a pro-se litigant adds a very different dynamic.