State ex rel. Neal v. Hamilton Circuit Court

• Decision Date: 14 November 1967
• Docket Number: No. 767,767
• Citation: 230 N.E.2d 775,249 Ind. 102
• Parties: STATE of Indiana on the relation of Jim NEAL and the Noblesville Daily Ledger, a corporation, Relators, v. The HAMILTON CIRCUIT COURT, Robert S. Webb, Special Judge of the Hamilton Circuit Court, Respondents. S 56.
• Court: Indiana Supreme Court

Page 775

230 N.E.2d 775

249 Ind. 102

STATE of Indiana on the relation of Jim NEAL and the Noblesville Daily Ledger, a corporation, Relators,

v.

The HAMILTON CIRCUIT COURT, Robert S. Webb, Special Judge of the Hamilton Circuit Court, Respondents.

No. 767 S 56.

Supreme Court of Indiana.

Nov. 14, 1967.

Symmes, Fleming, Ober & Symmes, Indianapolis, Christian, Waltz, White & Klotz, Noblesville, for relators.

Robert S. Webb, Noblesville, pro se.

ARTERBURN, Judge.

On July 19, 1965 the Honorable Edward New, Jr., Judge of the Hamilton Circuit Court, filed a citation for indirect criminal contempt against the relators, Jim Neal and the Noblesville Daily Ledger. The citation charged the newspaper, under the by-line of Jim Neal, of printing a 'disdainful, despicable, scurrilous and contemptuous article about this court * * *'. Thereafter, the regular judge submitted names for the selection of a special judge. The special judge having failed to act, a panel was submitted for the parties to strike, and thereupon the Honorable Robert S. Webb was selected as special judge of the Hamilton Circuit Court in the contempt proceeding. Thereafter the relators herein filed a verified motion for change of judge, with supporting affidavits attached thereto, stating among other things that the special judge had stated: 'that Jim Neal had been asking for it had he got what he deserved by being held in contempt'. It is further pointed out that this allegation was not denied by the verified return filed in this cause.

The special judge overruled the motion for change of judge and the relators came to this Court seeking a writ of mandate to compel a change to be made. We issued an alternative writ. The respondents take the position that Burns' Ind.Stat.Anno. § 3--911 is applicable. This statute provides for the appointment of a special judge in such proceedings and then states: 'The court shall thereupon appoint such person who shall remain unchallenged to preside in said cause as special judge.' (Acts 1931, Ch. 26, § 1, p. 62). In this connection is cited Allison v. State ex rel. Allison (1963), 243 Ind. 489, 187 N.E.2d 565, in which this statute was interpreted to the effect that a party was not entitled to a routine change of venue upon application thereafter. That case may be distinguished from the present case easily since in the Allison case no affidavit was filed presenting prima facie prejudice nor a counter affidavit filed making any issue thereon which might be the subject of an appeal. Here the facts are undisputed and in our opinion there can be no discretion when uncontradicted prejudice is shown. We have said:

'* * * we observe that no party should be compelled to have his cause heard before a prejudiced judge. There has been some criticism of the liberal rules in Indiana with reference to change of judges. There is to be said on the other side, that it is better that a person have a change of judge and feel that he is being tried before a fair and impartial tribunal than to have him feel he is being forced to be tried before on who is prejudiced. Fairness and impartiality of a tribunal is one of the basic and essential requirements of justice, and no matter how nice, refined or perfect rules of procedure may be, they avail one little, if any justice, when the tribunal is partial and prejudiced. For that reason,...