State ex rel. Smith v. Starke Circuit Court

• Citation: 417 N.E.2d 1115,275 Ind. 483
• Decision Date: 23 March 1981
• Docket Number: No. 780S210,780S210
• Parties: STATE of Indiana, on the relation of Roger Lee SMITH, Relator, v. The STARKE CIRCUIT COURT, and The Honorable Marvin D. McLaughlin, Judge of the Starke Circuit Court, Respondents.
• Court: Supreme Court of Indiana

Page 1115

417 N.E.2d 1115

275 Ind. 483

STATE of Indiana, on the relation of Roger Lee SMITH, Relator, v. The STARKE CIRCUIT COURT, and The Honorable Marvin D.

McLaughlin, Judge of the Starke Circuit Court, Respondents.

No. 780S210.

Supreme Court of Indiana.

March 23, 1981.

Frank E. Spencer, Indianapolis, for relator.

Theodore L. Sendak, Atty. Gen., Joseph N. Stevenson, William E. Daily, Deputy Attys. Gen., Indianapolis, for respondents.

PIVARNIK, Justice.

This cause is before us by virtue of relator's petition for a writ of mandate and prohibition against respondents, the Starke Circuit Court and the Honorable Marvin D. McLaughlin as judge of that court. At the heart of this case is a question concerning the constitutionality of Ind. Code §§ 33-4-1-74.3 33-4-1-74.9 (Burns Supp. 1980). These statutes concern the appointment of a master commissioner by the circuit court judge, and the commissioner's exercise of certain duties authorized by the sections in question. On July 21, 1980, this Court issued a temporary writ of mandate to the Starke Circuit Court and Judge McLaughlin. This opinion is in furtherance of those proceedings, and with this opinion we order that the writ of mandate shall be made permanent. In addition, we grant the petitions for leave to appear as amici curiae filed by the Vanderburgh and St. Joseph Circuit Courts. As we shall explain, we find certain statutory provisions to be violative of established principles found in the Indiana Constitution concerning the operation of the judiciary.

The procedural facts giving rise to this action may be summarized as follows. On March 3, 1979, Roger Lee Smith, relator in this original action, filed a petition for dissolution of marriage against his wife, Wanda Smith, in Starke Circuit Court. The previously appointed commissioner of the Starke Circuit Court, David P. Matsey, purported to act as the judge in the Smith marriage dissolution case. It is not disputed that Matsey performed the following acts pertaining to the resolution of the Smith case: signed the entry of filings; ordered hearings; ruled on motions; heard evidence and tried the cause as judge; entered judgment in the form of a decree on November 7, 1979; entered an amended judgment on January 31, 1980; and overruled the motion to correct errors. It is also not disputed that Matsey, in performing these acts, did not purport to act as a special judge or as judge pro tempore of the Starke Circuit Court. Matsey purported to adjudicate this matter solely in his capacity as Master Commissioner of the Starke Circuit Court.

On April 23, 1980, after Matsey had ruled on the motion to correct errors, Roger Smith's counsel filed a "Motion to Strike Purported Entry of Judgment, and Determination of Cause by Elected Judge." This pleading requested that respondent Judge McLaughlin strike Commissioner Matsey's purported entry of judgment and amendment of judgment. The entry of this filing was made by Commissioner Matsey. On May 22, 1980, Matsey entered an order purporting to overrule the motion to strike.

On June 13, 1980, relator's counsel filed a "Praecipe for Notice of Withdrawal of Submission," pursuant to Ind.R.Tr.P. 53.1(B), along with a suggested "Notice of Withdrawal of Submission." The theory behind this filing, of course, was that the duly-elected judge of the Starke Circuit Court, Marvin McLaughlin, had not ruled upon the motion to strike within thirty days of its filing, as called for in Trial Rule 53.1(A). Approximately one week later, relator's counsel was informed by the Starke Circuit Court Clerk's office that the Trial Rule 53.1 filings had been taken to the "judge" and had not been acted upon by the clerk. See Ind.R.Tr.P. 53.1(B). A few days later, relator's counsel ordered certified copies of these filings from the Starke Circuit Court Clerk. These certified copies were prepared, minus the tendered "Notice of Withdrawal"; relator was informed that Commissioner Matsey had these filings and that they had not been entered. On July 11, 1980, relator received the certified copies he had requested from the Circuit Court Clerk, together with a copy of the docket sheet for the Smith dissolution proceedings. The docket sheet shows the final entry, dated July 10, 1980, as follows: "Nunc pro tunc as of June 13, 1980. Petitioner tenders for filing his Praecipe for Notice of Withdrawal of Submission. The Clerk finds that there are no motions not ruled upon." The basis for this response seems to have been respondent's belief that Commissioner Matsey was fully authorized by statute to carry out all judicial duties concerning the Smith divorce proceedings, and that he had done so in accordance with Trial Rule 53.1.

Thereafter, relator filed his "Verified Petition for Writ of Mandate and Temporary Alternative Writ of Mandate." Relator asserts that the Smith marriage dissolution has not been tried and adjudicated by the judge of the Starke Circuit Court; that the motion to strike the purported entries of judgment and amended entry of judgment had not been ruled upon by the judge of the Starke Circuit Court; and that the Circuit Court Clerk had taken no action on his praecipe for notice of withdrawal of submission, in spite of the fact that the praecipe was filed more than thirty days after the filing of the motion to strike. Relator argues that Commissioner Matsey had no jurisdiction or power to purport to act as judge in the Smith marriage dissolution proceedings, and that respondent Judge McLaughlin originally had a duty to act as judge in that cause. Relator contends, therefore, that, by virtue of Judge McLaughlin's failure to rule on the motion to strike within thirty days and the filing of the Trial Rule 53.1 praecipe, respondent McLaughlin has lost the power to rule upon the motion to strike.

In his petition for a writ of mandate, relator prayed that the Court appoint a special judge or order that a writ be issued to respondent to show cause why a special judge should not be appointed to rule on the motion to strike and vacate Matsey's purported entries of judgment. After oral argument on this petition, this Court issued the temporary writ of mandate, and ordered the Clerk of this Court to issue an order to respondent to show cause, on or before August 22, 1980, why the Court should not appoint a special judge to rule on the motion to strike and to vacate the Commissioner's purported entries of judgment.

As stated earlier, we are concerned here with the validity, under the Indiana Constitution, of certain statutes which attempt to vest virtually full judicial powers on master commissioners who are appointed by, and serve at the pleasure of, circuit court judges. Respondent Judge McLaughlin appointed David P. Matsey Master Commissioner of the Starke Circuit Court pursuant to Ind. Code §§ 33-4-1-74.3 et seq. (Burns Supp. 1980). These statutes were passed by our legislature in 1977 and amended in 1978. Acts 1977, P.L. 314, §§ 1-7, p. 1452; amended by Acts 1978, P.L. 138, § 1, p. 1292. Section 33-4-1-74.3 provides that the Starke Circuit Court Judge may appoint a master commissioner. The commissioner must be an attorney in good standing and a resident of the county after his appointment. The appointment must be made in writing, and the commissioner continues in office until the judge removes him. Further, § 33-4-1-74.4 provides:

"(a) A master commissioner of the Starke Circuit Court may administer all oaths and affirmations required by law, take and certify affidavits and depositions, and issue subpoenas for witnesses whose testimony is to be taken before him. The master commissioner has the same power to compel the attendance of witnesses and to punish contempts as the judge of the court has. The master commissioner may conduct preliminary hearings in criminal matters and issue search warrants and arrest warrants and fix bond thereon.

(b) If empowered by the judge of the court, the master commissioner may exercise full jurisdiction over any probate matters, civil matters, or criminal matters, and he may enforce court rules. However, only the judge may exercise jurisdiction over juvenile matters."

In addition, § 33-4-1-74.5 permits the commissioner to serve as judge pro tempore of the court, but states that he shall receive no additional salary for such services. The master commissioner must devote full time to his duties, and may not otherwise engage in the practice of law; he is to receive the same salary as a judge of a county court. §§ 33-4-1-74.7; 33-4-1-74.8. See Ind. Code § 33-10.5-5-2 (Burns Supp. 1980). The commissioner is also entitled to participate in the public employees' retirement fund. § 33-4-1-74.9.

Further, § 33-4-1-74.6 provides:

"All inherent powers of judicial mandate in Starke County remain vested solely in the judge of the Starke Circuit Court."

Thus, the clear thrust of these statutes is to give the appointed commissioners the full scope of powers held by the regular Starke Circuit Court judge, except insofar as juvenile and mandate matters are concerned.

It is not disputed that in the case now before us, Commissioner Matsey's acts came within the scope of powers granted by § 33-4-1-74.4. The Smith dissolution proceeding has been handled from its inception in all respects by Matsey. Prior to our issuance of the temporary writ of mandate, Judge McLaughlin was not involved in the Smith dissolution.

The legislature also has passed very similar statutes applicable to the circuit courts of Vanderburgh and St. Joseph Counties. In fact, the Vanderburgh and St. Joseph Circuit Courts and their respective judges have petitioned for leave to appear as amici curiae, and have tendered briefs as amici in defense of the constitutionality of the statutes applicable to their counties. Ind. Code §§ 33-4-1-82.1 et seq. (Burns Supp. 1980) provides for the appointment of a master commissioner for the Vanderburgh Circuit Court, and establishes his powers and duties. These...