IN THE

SUPREME COURT OF INDIANA 

BOBBIE SELLERS                                    )           Supreme Court No. 02S00-0410-SJ-448

                                                                        )

vs.                                                                   )    

                                                                        )

ALLEN COUNTY CHILD SUPPORT     )           Case No. 02D01-0407-PL-302

DIVISION, ET AL.                                       )           in the Allen Superior Court

ORDER REMANDING JURISDICTION TO TRIAL COURT

      This matter comes before the Court upon the certification of the Hon. William C. Fee, Special Judge, seeking direction on whether he should recuse in light of a tort claim notice filed against him by Mr. Sellers. Judge Fee notes that Mr. Sellers’ tort claim is based upon rulings made by Judge Fee in his capacity as special judge in this case.

      Indiana Trial Rule 79(C) provides in relevant part: “A judge shall disqualify and recuse whenever the judge … (1) is a party to the proceedings.” However, Article 1, Section 12 of the Indiana Constitution militates against our rules being manipulated by a party filing a successive pattern of sham proceedings, the end result of which “is that no judicial forum will exist in which the case can be heard.” Matter of the Appointment of a Special Judge, 500 N.E.2d 751, 753 (Ind. 1986).

      Rather than automatic disqualification and recusal, the trial court before which the matter is presently pending should:

[C]onduct a summary, yet due process hearing upon the question of whether the claim [now pending] or any other claim of which the court has knowledge, presents a reasonable basis for disqualification. If the Court has jurisdiction of any such claim and such claim is specious and a sham and intended solely to evade court jurisdiction, it should strike such claim. If the claim has no reasonable basis, the court should not disqualify. If the claim does have a reasonable basis, the trial court should disqualify itself and certify such action to this court.

Matter of Appointment, 500 N.E.2d at 753.

      IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that this cause is remanded to the Hon. William C. Fee to conduct a summary hearing as outlined above.

      The Clerk of this Court is directed to forward notice of this Order to the Hon. William C. Fee, Steuben Superior Court, 55 South Public Square, Angola, IN 46703-0327, and to the Clerk of the Allen Superior Court.

      The Clerk of the Allen Superior Court is directed to forward notice of this Order to all parties of record in the case below.

DONE at Indianapolis, Indiana, this _______ day of December, 2004.

                                                                                                ________________________

                                                                                                Theodore R. Boehm                                                                                                                                Acting Chief Justice of Indiana