In Re Judge Pro Tem in Tippecanoe Superior 2

IN THE INDIANA SUPREME COURT IN THE MATTER OF ) THE APPOINTMENT OF ) A JUDGE PRO TEMPORE IN ) Case No. 79S00-0201-MS-76 TIPPECANOE SUPERIOR ) COURT NO. 2                )
 

ORDER APPOINTING JUDGE PRO TEMPORE
 
    The Court has been advised of a vacancy in the office of judge of the Tippecanoe Superior Court No. 2. This vacancy has arisen due to the death of the elected judge, the Honorable George J. Heid.
 
    When a vacancy occurs in the office of judge of any court, the Governor of Indiana shall fill the vacancy by appointment. Ind. Const. art. V, § 18. An orderly operation of the judicial system requires, however, that an interim judge pro tempore be appointed to serve until such time as the Governor acts.
 
Accordingly, in the interests of the continuing administration of justice and pursuant to Trial Rule 63(B) and Criminal Rule 14 and the Court's inherent constitutional authority for managing the operation of the judiciary, it is ordered that the Hon. David J. Crouse is appointed as judge pro tempore in the Tippecanoe Superior Court No. 2. This appointment is effective immediately and remains in effect until a successor judge is appointed by the Governor, or elected in a general election, or until further order of this Court.
 
Indiana Code section 34-35-1-5 speaks of a procedure by which a county sheriff may adjourn a trial court from day to day upon the death of a judge, and whereby the county clerk, sheriff, auditor, and recorder may elect an attorney to act as judge when the incumbent has failed to attend or appear. However, that entire section, by its own terms, applies only "if a judge is prevented from presiding . . . so that the court will lapse." Ind. Code § 34-35-1-5(a) (emphasis added). The statute, as codified in 1881, contained essentially the same language. Acts 1881 (ss) c. 38, s. 261 ("If during any session of court, by reason of death, sickness or other casualty, any judge shall be prevented from presiding, so that the court will lapse . . .").

"Lapse" is a word with many shades of meaning, but it might generally be understood to mean to expire, pass away, fail, or fall from one status to another, or to go out of existence entirely. See generally Black's Law Dictionary 885 (7th ed. 1999); Webster's Third New International Dictionary 1272 (1967). Thus, by its own terms, Indiana Code section 34-35-1-5 is not applicable because this is not a situation where Tippecanoe Superior Court No. 2 will lapse in any meaningful sense of the word.

There is no need to recite the vast changes in technology, communications, and transportation that have occurred since the statute was enacted 121 years ago. It is enough simply to note that the development of multi-court counties, the creation of rules allowing cases to be reassigned from one court to another, and the adoption of rules governing the appointment of judges pro tempore to fill special needs, have made the "lapsing" of a court an extraordinarily remote contingency.

In the ordinary exercise of constitutionally vested judicial power, the Supreme Court has the inherent authority to appoint judges pro tempore to fill vacancies until the Governor makes an appointment, in order to keep the judicial division of government fully functional. We find that Indiana Code section 34-35-1-5 has no application because there is no risk of a court lapsing.

This order shall be sufficient authority for Judge David J. Crouse to continue the employment of court personnel and otherwise discharge the duties of judge of Tippecanoe Superior Court No. 2. Judge Crouse shall be entitled to compensation for this service, paid by the State of Indiana, computed at the same rate as the regular judge commencing from the date of this order, pursuant to Trial Rule 63(D).
 
    The Clerk of this Court is directed to forward a certified copy of this order to the Clerk of the Tippecanoe Superior Court, who is directed to enter this order into the Record of Judgments and Orders. The Clerk is further directed to send copies of this order to the Honorable David J. Crouse; to the Division of State Court Administration, payroll department; and to the Indiana Judicial Center.
    
Done at Indianapolis, Indiana, this 28th day of January, 2002.
 
 
                        ____________________________
                        Randall T. Shepard
                        Chief Justice of Indiana

All Justices concur.