
                                   IN THE
                            INDIANA SUPREME COURT

IN THE MATTER OF                  )
THE APPOINTMENT  OF               )
A JUDGE PRO TEMPORE IN            )  Case No. 79S00-0201-MS-76   TIPPECANOE
SUPERIOR         )
COURT NO. 2                  )





                     ORDER APPOINTING JUDGE PRO TEMPORE


      The Court has been advised of a vacancy in the office of judge of  the
Tippecanoe Superior Court No. 2.  This vacancy has arisen due to  the  death
of the elected judge, the Honorable George J. Heid.

      When a vacancy occurs in  the  office  of  judge  of  any  court,  the
Governor of Indiana shall fill the  vacancy  by  appointment.   Ind.  Const.
art. V, § 18.   An  orderly  operation  of  the  judicial  system  requires,
however, that an interim judge pro tempore be appointed to serve until  such
time as the Governor acts.


      Accordingly, in the interests  of  the  continuing  administration  of
justice and pursuant to Trial Rule  63(B)  and  Criminal  Rule  14  and  the
Court’s inherent constitutional authority for managing the operation of  the
judiciary, it is ordered that the Hon.  David  J.  Crouse  is  appointed  as
judge pro tempore in the Tippecanoe Superior Court No. 2.  This  appointment
is effective immediately and remains in effect until a  successor  judge  is
appointed by the Governor, or  elected  in  a  general  election,  or  until
further order of this Court.


      Indiana Code section 34-35-1-5 speaks of a procedure by which a county
sheriff may adjourn a trial court from day  to  day  upon  the  death  of  a
judge, and whereby the county clerk,  sheriff,  auditor,  and  recorder  may
elect an attorney to act as judge when the incumbent has  failed  to  attend
or appear.  However, that entire section, by its  own  terms,  applies  only
“if a judge is prevented from presiding  .  .  .  so  that  the  court  will
lapse.”  Ind.  Code  §  34-35-1-5(a)  (emphasis  added).   The  statute,  as
codified in 1881, contained essentially the same language.  Acts  1881  (ss)
c. 38, s. 261 (“If  during  any  session  of  court,  by  reason  of  death,
sickness or other casualty, any judge shall be prevented from presiding,  so
that the court will lapse . . .”).


      “Lapse” is a word with many shades of meaning, but it might  generally
be understood to mean to expire, pass away, fail, or fall  from  one  status
to another, or to go out of existence entirely.  See generally  Black’s  Law
Dictionary 885 (7th ed. 1999); Webster’s Third New International  Dictionary
1272 (1967).  Thus, by its own terms, Indiana Code section 34-35-1-5 is  not
applicable because this is not a situation where Tippecanoe  Superior  Court
No. 2 will lapse in any meaningful sense of the word.


      There  is  no  need  to  recite  the  vast  changes   in   technology,
communications, and transportation that have occurred since the statute  was
enacted 121 years ago.  It is enough simply to note that the development  of
multi-court counties, the creation of rules allowing cases to be  reassigned
from one  court  to  another,  and  the  adoption  of  rules  governing  the
appointment of judges pro tempore to  fill  special  needs,  have  made  the
“lapsing” of a court an extraordinarily remote contingency.


      In the ordinary exercise of constitutionally  vested  judicial  power,
the Supreme Court has the inherent authority to appoint judges  pro  tempore
to fill vacancies until the Governor makes an appointment, in order to  keep
the judicial division of government fully functional. We find  that  Indiana
Code section 34-35-1-5 has no application because there  is  no  risk  of  a
court lapsing.


      This order shall be sufficient authority for Judge David J. Crouse  to
continue the employment of  court  personnel  and  otherwise  discharge  the
duties of judge of Tippecanoe Superior Court No. 2.  Judge Crouse  shall  be
entitled to compensation for this service, paid by  the  State  of  Indiana,
computed at the same rate as the regular judge commencing from the  date  of
this order, pursuant to Trial Rule 63(D).


      The Clerk of this Court is directed to forward  a  certified  copy  of
this order to the Clerk of the Tippecanoe Superior Court,  who  is  directed
to enter this order into the Record of Judgments and Orders.  The  Clerk  is
further directed to send copies of this order  to  the  Honorable  David  J.
Crouse; to the Division of State Court Administration,  payroll  department;
and to the Indiana Judicial Center.

      Done at Indianapolis, Indiana, this 28th day of January, 2002.


                                  ____________________________
                                  Randall T. Shepard
                                  Chief Justice of Indiana

All Justices concur.
