Tuesday, February 18, 2014

Mother Shot at Day Care Had Filed to Remove Her Case From "Lazy Judge"; Claimed Judge Retaliated Against Her

The weekend before last, I was contacted by a potential client, Shirley (Talia) Justice,  who wanted to do a Rule 53.1 lazy judge praecipe (often erroneously called a "motion") to remove Marion County Judge Patrick McCarty from her case.  She had had a modification of custody hearing in November,  Nearly three months had passed and there was no ruling.  I told her because of Judge McCarty's role in trying to get me disciplined for sending out a letter attempting to educate Marion County judges on what procedure they were supposed to follow at the close of a civil forfeiture case (a determination of law enforcement costs with the balance going to the Common School Fund), I could not represent her.

The first thing on Monday, February 10, 2014, Ms. Justice filed, pro se, a Rule 53.1 lazy judge praecipe to remove Judge McCarty.  The role of the Clerk's employee, who is embedded in the judge's office, is ministerial only - verify that there had been no ruling since the motion was filed or hearing held and that over 30 days had passed.  If those facts are present on the docket, the clerk certifies it to the state court administrator to order the judge removed and a special judge appointed.

Instead of following that procedure, someone in the office tipped off the judge who put together an order that was entered on the docket ahead of the lazy judge praecipe.  In March of 2009, Ms. Justice had been awarded primary physical custody of her child with legal custody being shared.  This newly entered order though drastically changed the custody situation.  Father was awarded sole legal and physical custody of the minor child and the mother was denied any additional parenting time.  The entry from the docket is below:
Order Modifying Custody, Parenting Time and Child Support: Father shall have sole legal and physical custody of [minor child.]. Specific parenting time set out in the Order; Mother shall not have the opportunity for additional parenting time. Mother shall have no overnight parenting time. Mother shall not allow any male to be present during her parenting time, except at public places. Kathy Thornton (paternal grandmother) shall serve as temporary custodian in the event of incapacity or death of Father. Mother to pay $127 per week in support effective Nov 8, 2013. Father to provide health insurance; Father to pay 1st $568 of uninsured expenses and any remaining expenses split 50-50. Father may claim child for tax purposes. Mother to pay $1,454 in attorney fees or it may be reduced to judgment. Copies of order mailed. 
Ms. Justice contacted me and complained about her lazy judge praecipe being "denied" and Judge McCarty's order that she felt was retaliatory.  She again asked me to represent her but I told her I couldn't.  I instead told her to notify the State Court Administrator and let them know what happened.  To the credit of the people in that office, the case was removed from Judge McCarty:

Order Received from the Indiana Supreme Court
Accordingly, submission of this case is withdrawn from JUDGE Patrick L. McCarty effective as of the 8.20 a,m. February 10, 2014. This matter will be submitted to the Indiana Supreme Court for appointment of a special Judge or such other action deemed appropriate by the the Court. In accordance with Ind. Trial Rule 53.1(E) you must enter this determination in the Chronological Case Summary of the case and notify, in writing. the judge and all parties of record in the proceeding.    
Order Signed:  02/13/2014
The last contact from Ms. Justice came last Friday when she asked me the effect of the Supreme Court's action.  I told her it wasn't clear, but it should be that the order entered by Judge McCarty is vacated.  The Supreme Court's order, however, didn't address that issue.

Unfortunately the story doesn't have a happy ending.  USA Today reports:A woman was in critical condition Tuesday after she was shot multiple times in the parking lot of a day care center, according to police.
None of the 17 children at the Eagle View KinderCare Learning Center were injured.   
The victim, Shirley Justice, 31, was able to tell police that her ex-husband, Christopher Justice, 33, was the person who shot her.   
Police are looking for Christopher Justice, described as a black male about 6' 1" and weighing 180 pounds. He is believed to be driving a black Ford Fusion with an "In God We Trust" license plate.   
Initial reports indicated Shirley Justice sustained multiple gunshot wounds in her chest area, but was talking to medics while in en route to the hospital at 7:45 a.m.   
The shooting occurred about 7:20 a.m. at the center located in a business and commercial area. The victim was found on the ground in the parking lot by a center manager, police said.

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