Beginning January 1, 2012, the procedure by which the submission of a case is withdrawn from a judge under Trial Rules 53.1 and 53.2 will change. Currently, after a party files a motion to withdraw with the clerk of the court where the case is pending and recorded in the clerk’s praecipe book, the clerk reviews the chronological case summary (CCS) and determines if the judge has delayed ruling as alleged. If the clerk determines that the record shows that the judge has delayed ruling, the clerk notifies the judge, the parties and the Supreme Court that the submission was withdrawn as of the date of the praecipe.
The new procedure will commence in the same fashion as the current rules, except that instead of the clerk making a determination about delay in ruling, the clerk will forward the praecipe and CCS to the Executive Director of State of Court Administration, who will determine if delay has occurred. If the Director finds that a ruling has been delayed, the Director will instruct the clerk to give notice to the judge and the parties, and record on the CCS that the submission was withdrawn as of the date of the filing of the praecipe. The Director will also forward the matter to the Supreme Court for appropriate further action.
The Supreme Court has held that in making the determination the clerk, “…must operate upon the basis of the objecting party’s praecipe and what is disclosed to him by the trial court’s record at that date.” Baker v. American Metal Climax Corp., 307 N.E.2d 49, (Ind. 1974). The clerks, however, have often expressed to the Supreme Court their discomfort with this duty and the difficulty they experience in assessing some of the more subtle issues that have an impact on whether or not withdrawal of the case from the trial judge is warranted. The Court was persuaded by their comments, and therefore this burden is being removed from the clerks.
It is crucial for counsel to insure that the reasons for withdrawing the submission set out in the praecipe are supported by entries on the CCS. All too often, upon reviewing the praecipe for withdrawal of a submission, the Court has found that the CCS entries do not sustain the reasons given to support finding of delay and withdrawing the submission. For example, on several occasions the Court has seen praecipes stating that the trial court had heard a motion and failed to rule within thirty days, but the CCS did not reflect that a hearing occurred.
In those situations where the CCS does not confirm the contentions set out in the praecipe, resolution of the withdrawal may be delayed while additional information is sought, or the request for withdrawal of submission may be subject to summary denial for lack of a supporting record.