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Thursday, December 04, 2014

Ind. Courts - Why did Judge Wentworth last summer (7/13) suddenly recuse herself from the Garwood tax appeal?

Tomorrow, Friday, Dec. 5, at 11:30 AM, the Indiana Tax Court will hold a hearing on Respondent's Motion for Summary Judgment in the case of Virginia Garwood v. Ind. Dep't of State Revenue (IDOR). The hearing will take place in Evansville, and Sr. Judge Fisher will preside.

The original Garwood case ("Garwood I", sometimes known as the "puppy-mill case"), was decided by Tax Court Judge Wentworth on Aug. 19, 2011. The Supreme Court denied transfer. See this ILB post from May 20, 2012 ("Supreme Court lets Tax Court decision in Garwood v. State stand") for background.

A "Garwood II" (82T10-1208-TA-46) ruling, denying the IDOR's motion to dismiss, was entered by Sr. Judge Fisher on Oct. 31st, 2013. Tomorrow's hearing is on Respondent IDOR's summary judgment motion.

The ILB was interested in why the Garwood case, which had been handled exclusively by Judge Wentworth for several years, had now been moved to Sr.J.Fisher. A review of the docket yields the answer. (Unfortunately, I can no longer link to the docket now that it has been moved to mycase.com, as related in this post yesterday titled "One step forward followed by two steps back for the appellate docket.")

Here is the answer, as it appears in July 1, 2013 entries in the case docket (which I have reformatted using a text-converter for easier reading):

07/01/2013 Tax Court Order

1. On August 19, 2011, Judge Martha Blood Wentworth issued
the opinion in Garwood v. Indiana Department of State Revenue,
953 n.e.2d 682 (Ind. Tax Ct. 2011) ("Garwood I").

2. On October 19, 2011, the Indiana Department of State
Revenue filed a petition for review of Garwood I with the
Indiana Supreme Court under Appellate Rule 63.

3. On May 15, 2012, the Indiana Supreme Court unanimously
denied the petition for review, terminating the litigation
between the parties pursuant to Appellate Rule 63(N).

4. On August 27, 2012, Virginia Garwood, the petitioner in
Garwood I, initiated the new matter captioned above by filing
a verified petition for judicial review in the tax court against
the department ("Garwood II").

5. On October 9, 2012, the Department filed a motion to
disqualify and change of judge for cause, which the Tax Court
denied on October 29, 2012.

6. On November 15, 2012, the Department filed a motion to
certify for interlocutory appeal the court's order of October
29, 2012 and motion to stay Tax Court proceedings, which the
Tax Court certified on December 4, 2012, staying the underlying

7. On February 19, 2013, the Indiana Supreme Court denied
the Department's request for interlocutory appeal.

8. On April 17, 2013, Attorney General Gregory F. Zoeller's
office called the Tax Court staff to request a 10-15 minute
meeting between Judge Wentworth and the Attorney General.

9. Believing the topic would be a procedural question not
related to either Garwood I or Garwood II, Judge Wentworth met
with the Attorney General on April 19, 2013.

10. During the meeting, however the Attorney General request-
ed Judge Wentworth disqualify herself from Garwood II because,
among other things, he believed her summary of the Garwood I
opinion at a March 2, 2013, continuing legal education seminar
could be confused as her commenting on the present case,
Garwood II.

11. Having considered the concerns raised by the Attorney
General in light of both Indiana Judicial Conduct Rules 2.10
and 2.11 as well as the advice sought from the other judges
in attendance at the seminar and counsel for the Commission
on Judicial Qualifications, the March 2nd event does not merit

12. Nonetheless, according to the judicial cannons and advice
from counsel for the Commission on Judicial Qualifications, the
request by the Department's lawyer in Garwood II that the judge
recuse was an ex parte communication.

13. Indiana Judicial Conduct Rule 2.9(b) requires that "if a
judge inadvertently receives an unauthorized ex parte communica-
tion, the judge shall notify the parties of the substance of
the communication and provide an opportunity to respond."

14. Ex parte communications by their very nature suggest
partiality. Tyson v. State, 622 N.E.2d 457 (Ind. 1993).

15. Even though Judge Wentworth's participation in the ex
parte communication was inadvertent, the request by the lawyer
for a party intending to affect the judge's behavior in
Garwood II (in the very manner taking place today) could create
a reasonable basis for questioning her impartiality.

6. Mindful of the duty to promote public confidence in the
impartiality and the fairness of decisions of the Tax Court,
Judge Wentworth hereby disqualifies herself from this case
under Rules 2.9(B) and 2.11 of the Indiana Code of Judicial
Conduct and requests the Chief Justice of the Supreme Court to
appoint a special judge pursuant to Indiana Code 33-26-2-6 and
Tax Court Rule 15.

Martha Blood Wentworth, Judge

Here is RULE 2.9: Ex Parte Communications and RULE 2.11: Disqualification, of the Rules of Judicial Conduct.

Also of relevance here are the Rules of Professional Conduct, particularly RULE 3.5. Impartiality and Decorum of the Tribunal. Rule 3.5 begins:

A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;
Comment 2 states:
[2] During a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters or jurors, unless authorized to do so by law or court order.
It is unclear from the order if Judge Wentworth filed a disciplinary complaint against the Attorney General for the ex parte communication he initiated with her. Disciplinary complaints are private unless formal charges are pursued by the Commission.

Posted by Marcia Oddi on December 4, 2014 03:06 PM
Posted to Ind. Tax Ct. Decisions