Sunday, June 09, 2013
Ind. Courts - More on: If a justice is going to recuse him/her self, should that be announced when review is granted? [Updated at 6:30 PM]
Updating this ILB post from June 7th, that explored the question of recusal and when it should be publicly announced, here are several more recent examples (taken from the transfer sheets) where a justice announced, at the time review was granted, that he was not participating in the case:
- State of Indiana, et al v. Alice V. Meyer, et al - 5/14/09
(CLERK’S TRANSFER ACTION – week ending May 15, 2009)
Granted – Sullivan, J., not participating
- Mariea L. Best v. Russell C. Best - 2/8/11
(CLERK’S TRANSFER ACTION – week ending Feb. 11, 2011)
Granted - Shepard, C.J., and Dickson, and Rucker, JJ., concur. Sullivan, J., would deny transfer; David, J., not participating.
[ILB update, 8/17/13]: Note that in Best v. Best, transfer was granted with opinion.]
[More added at 6:30 PM, 6/9/13]
Are there examples where a justice has decided to recuse after hearing the oral argument? Yes, here are two:
- Filter Specialists, Inc. v. Dawn Brooks - Here all five justices participate in the oral argument, while the May 21, 2009 opinion is decided 4-0, "Shepard, C.J., not participating."
- Sylvia B. Piven, et al. v. ITT Corporation, Inc (aka - In re: ITT Derivative Litigation) - This deals with a certified question from the federal district court in SD NY. All five justices participate in the oral argument. The June 28, 2010 opinion is decided 4-0 with "Sullivan, J., not participating."
From a reader: "Probably the best known example of a justice recusing late in the process is the Wilkins opinion."
ILB: Unfortunately, Wilkins partially took place before the start of the ILB, which only goes back to March 16, 2003. However, a July 27, 2003 ILB post (you would have to scroll down the July 2003 entries until you reached it) includes this:
On rehearing, as the NY Times reported Feb. 5, 2003, "The Supreme Court replaced its earlier 30-day suspension of the lawyer, Michael A. Wilkins, with a reprimand. A justice in the majority in the earlier ruling, Robert D. Rucker, did not participate in decision. The justice had served on the appeals court panel that Mr. Wilkins criticized."
Here is a link to the initial Supreme Court October 29, 2002 ruling, a link to the January 3, 2003 response by J. Rucker on the motion for recusal (see particularly the final paragraph), and a link to the Feb. 4, 2003 opinion on rehearing, "RUCKER, J., not participating".
Posted by Marcia Oddi on June 9, 2013 02:08 PM
Posted to Indiana Courts