A few recent cases have highlighted the need to consider requesting a change of judge to preserve the child’s right to due process and impartiality of the tribunal.
In juvenile court, a change of judge may be granted only for good cause shown by affidavit filed at least twenty-four hours before the factfinding hearing. IC 31-32-8-1. Argument for change of judge may include alleged violations of the Indiana Code of Judicial Conduct. The judges have a duty to uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. Ind. Judicial Canon 1. There is also a duty to preform the duties of judicial office impartially. Ind. Judicial Canon 2.
Paul Gingerich was granted a new judge to reconsider the question of waiver of juvenile court jurisdiction, following a decision to remand the case back to the juvenile court. In a recent interview, Gingerich’s attorney, Monica Foster, noted that “…anytime you’ve got a judge that’s been reversed it’s always good to start with fresh faces.”
That same “fresh face” may be appropriate if the judge has insulted or ridiculed parties and lawyers, or when the judge has used offensive language. The recent disciplinary opinion by the West Virginia Supreme Court has useful language that the use of profanity and threats demonstrates a lack of impartiality. Closer to home, in February 2013, Allen County Magistrate Judge Marcia Linsky resigned without prior notice amidst concerns about her demeanor in the courtroom. Especially in juvenile court, it is imperative that the judge model the proper way to behave in a courtroom by using appropriate language when addressing the child.
A change of judge motion may be uncomfortable to file, but it can be a necessary tool to preserve the appearance of impartiality and integrity of the court that has so much power over the child’s path.