ATTORNEY FOR THE RELATORS                                ATTORNEYS FOR THE LAKE SUPERIOR COURT
R. Cordell Funk                                          RESPONDENTS
Crown Point, IN                                          Karl L. Mulvaney
                                                         Nana Quay-Smith
ATTORNEYS FOR THE STATE OF INDIANA                       Briana L. Clark
Gregory F. Zoeller                                       Indianapolis, IN
Attorney General of Indiana
                                                         ATTORNEY FOR THE LAKE CIRCUIT COURT
Stephen R. Creason                                       RESPONDENTS
Chief Counsel                                            Bruce A. Kotzan
                                                         Indianapolis, IN
Thomas M. Fisher
Solicitor General

Kyle Hunter
Deputy Attorney General
Indianapolis, IN
                                                            May 17 2013, 9:15 am
______________________________________________________________________________


                                            In the
                          Indiana Supreme Court
                             _________________________________

                                     No. 45S00-1303-OR-209

STATE OF INDIANA EX REL. GLENN D. COMMONS, ET AL.,
                                                             Relators,
                                                  v.

THE HON. JOHN R. PERA, AS CHIEF JUDGE OF THE LAKE SUPERIOR
COURT, ET AL.,
                                                      Respondents.
                         _________________________________

                                       Original Action
                             _________________________________


                                          May 17, 2013

Per Curiam.


        This Court has exclusive, original jurisdiction to supervise the exercise of jurisdiction of
lower state courts. See Ind. Const. art. 7, § 4; Ind. Original Action Rule 1. Relators have filed
this proceeding under the Indiana Original Action Rules, seeking a writ of mandamus and
prohibition regarding the filling of the vacancy on the bench of the Lake Superior Court’s
Juvenile Division.     For reasons explained below, we grant in part and deny in part the relief
sought by Relators.


                                               Background


        Relators Glenn D. Commons, Jeffrey Miller, and Charlotte Ann Peller are magistrates in
the Lake Superior Court, Juvenile Division. This opinion refers to them collectively as “the
Magistrates.” Respondents are the Lake Circuit Court, the Lake Superior Court, and the Judges
thereof. See Orig. Act. R. 1(C). Respondents are referred to collectively here as “the Judges.”


        There is no underlying case from which this original action arises, but the relevant facts
are undisputed. The Magistrates complain about a decision made by the Judges at their meeting
on February 12, 2013. At that meeting, a majority voted to allow Judge Nicholas J. Schiralli to
be reassigned from the Lake Superior Court’s County Division to its Juvenile Division, upon the
then-upcoming resignation of Judge Mary Beth Bonaventura, who had been presiding over the
Superior Court’s Juvenile Division. (Relators’ Record at 1-5.) The Magistrates characterize the
decision made by this vote as an en banc ruling or order sufficient to authorize them to seek re-
lief through an original action in the Supreme Court.1


        The Magistrates filed this original action on March 20, 2013, seeking both an emergency
writ and a permanent writ of mandamus and prohibition.              On March 21, this Court issued an
emergency writ, which (1) stayed any proceedings by the Judges concerning the transfer of
Judge Schiralli to the Juvenile Division; (2) announced that this Court would appoint a judge pro
tempore to preside in the Juvenile Division until this Court could rule upon the request for a
permanent writ2; and (3) gave the Judges until April 8 to file a brief opposing issuance of the
permanent writ.3


1
 Despite the procedural irregularity of this original action, the Judges agree with the Magistrates that this
Court should “exercise its original jurisdiction and resolve the issues presented.” (Br. in Opp. at 1 n.1.)
2
  On March 22, this Court appointed Senior Judge Thomas W. Webber, Sr., to serve as judge pro tempore
in the Juvenile Division, effective March 25.
                                                     2
        On April 5, the Lake Superior Court and its Judges filed a brief opposing issuance of the
permanent writ, and the Lake Circuit Court and its Judge soon joined in that brief. With leave of
this Court, the Magistrates filed a reply brief on April 16, the Indiana Attorney General (repre-
senting the State) filed a brief on April 18, and the Judges filed a reply brief on April 23.


                                              Discussion


        The writ of mandamus is an extraordinary remedy, equitable in nature and viewed with
disfavor. State ex rel. Woodford v. Marion Super. Ct., 655 N.E.2d 63, 65 (Ind. 1995). Writs of
mandamus and prohibition will not be issued unless the relator can show a clear and obvious
emergency where the failure of this Court to act will result in substantial injustice. State ex rel.
City of New Haven v. Allen Super. Ct., 699 N.E.2d 1134, 1136 (Ind. 1998). Writs of mandamus
and prohibition will be issued only where the trial court has an absolute duty to act or refrain
from acting. Id.



        The Magistrates request a permanent writ of mandamus and prohibition (1) declaring that
Judge Schiralli cannot be reassigned from the County Division to the Juvenile Division; and (2)
ruling that no current Judge of the Superior Court is eligible for transfer to the Juvenile Division
and that the only way the judgeship of the Juvenile Division can be filled is by using the statuto-
ry merit-selection process.



                                                   I.

        The Magistrates’ primary argument is that a transfer of Judge Schiralli to the Juvenile
Division would violate Indiana Code section 33-33-45-21(e), which applies only to the Lake Su-
perior Court. The statute provides, in its entirety,




3
  On April 1, this Court issued an order requiring mediation and appointing the Hon. Frank Sullivan, Jr.
(Ret.) as mediator. The mediator filed a report on May 7, stating that mediation was held and the issues
between the Magistrates and the Judges were not settled. The Court expresses its gratitude for the media-
tor’s service.
                                                   3
            (a) The [Lake Superior] court is divided into civil (including probate), criminal,
            county, and juvenile divisions. The work of the court shall be divided among the
            divisions by the rules of the court.
            (b) Seven (7) judges comprise the civil division. Four (4) judges comprise the
            criminal division. Four (4) judges comprise the county division. One (1) judge
            comprises the juvenile division.[4] However, the court by rule may alter the num-
            ber of judges assigned to a division of the court if the court determines that the
            change is necessary for the efficient operation of the court.
            (c) The court by rule may reassign a judge of the court from one (1) division to
            another if the court determines that the change is necessary for the efficient opera-
            tion of the court. The court by rule may establish a rotation schedule providing for
            the rotation of judges through the various divisions. The rotation schedule may be
            used if the court determines that an emergency exists. However, a senior judge of
            any division may not be reassigned or rotated to another division under this sub-
            section.
            (d) The chief judge of the court may assign a judge in one (1) division of the court
            to hear a case originating in another division of the court, and may reassign cases
            from one (1) judge to another, if the chief judge determines that the change is
            necessary for the efficient operation of the court.
            (e) A judge of a division of the court who has not been appointed to the court un-
            der section 38 of this chapter is not eligible to be reassigned, rotated, or trans-
            ferred to the other divisions of the court. However, a judge of a division of the
            court who has not been appointed to the court under section 38 of this chapter
            may apply to fill a vacancy in another division of the court through appointment
            as provided under this chapter.

Ind. Code § 33-33-45-21 (emphasis added). The italicized language in subsection 21(e) was
added to the statute two years ago in Public Law 201-2011, effective July 1, 2011. Section 38, in
turn, provides, “A vacancy occurring on the court shall be filled by appointment of the governor
from a list of three (3) nominees presented to the governor by the judicial nominating commis-
sion.” I.C. § 33-33-45-38(a).


        The Magistrates argue that because Judge Schiralli was not appointed to the Lake Superi-
or Court under the merit-selection process described in section 38, Indiana Code section 33-33-
45-21(e) prohibits his transfer from the County Division to the Juvenile Division.             The Judges
contend that Judge Schiralli was elected in 1976 to a four-year term on the County Court of Lake
County and was later elected to the Lake Superior Court, once the County Division became part


4
  “The superior court of Lake County consists of sixteen (16) judges plus the Lake circuit court judge if
the circuit court judge chooses to sit on the superior court of Lake County.” I.C. § 33-33-45-26.


                                                     4
of the Lake Superior Court. (See Br. in Opp. at 4, 16-18.) In other words, the Judges implicitly
acknowledge that he was not appointed through the merit-selection process.


       The Judges respond that the prohibition on transfer in Indiana Code section 33-33-45-
21(e) cannot be enforced because it conflicts with the Lake County courts’ “transfer rule.” The
genesis of this transfer rule is an “Administrative Order Adopting A Plan For The Allocation Of
Judicial Resources For Calendar Year 2000,” adopted by the Lake Circuit and Superior Courts in
December 1999, which reads, in part:


           IT IS, THEREFORE, ORDERED, AND DECREED….
           9. Selection of Judge to Transfer Court. In the event a new court is created or a
           court is vacated in the Superior Court, a sitting judge of the Superior Court may
           elect to serve in the new or vacated court. Should more than one judge wish to
           serve in a court under this provision, the judge with the most seniority shall pre-
           vail. In the event two or more judges with equal seniority wish to serve in a court,
           the decision will be made by lot.


(Relators’ Record at 14, 17.) On January 6, 2000, this Court issued an “Order Approving Dis-
trict Caseload Plan,” which found that the plan submitted by the Lake County courts should be
adopted and approved it. (Id. at 6-7.)



       On several subsequent occasions, the Lake County courts requested that this Court ap-
prove amendments to their caseload allocation plan that did not affect the transfer rule, and this
Court approved those amendments. In fact, since the transfer rule’s inclusion in the 2000 case-
load allocation plan order, the Lake Superior Court has continued to recognize, recite, and apply
the transfer rule, including when certain merit-selected judges were transferred to different court-
rooms within the Civil Division in 2007 and 2012 when a vacancy arose. (See Reply to the
Briefs of the Attorney General and the Relators, Exhibits A & B.) It is this transfer rule that the
Judges cited when voting in February 2013 to approve Judge Schiralli’s transfer from the County
Division to the Juvenile Division. (Relators’ Record at 1-5.)




                                                 5
        The Judges acknowledge Indiana Code section 33-33-45-21(e)’s prohibition on transfer
and reassignment of a non-eligible judge, but they contend the prohibition cannot be enforced
because it conflicts with the local transfer rule. The Judges cite Indiana Code section 34-8-1-3,
which provides:


            The supreme court has authority to adopt, amend, and rescind rules of court that
            govern and control practice and procedure in all the courts of Indiana. These
            rules must be promulgated and take effect under the rules adopted by the supreme
            court, and thereafter all laws in conflict with the supreme court’s rules have no
            further force or effect.


(Emphasis added.) From this, the Judges concluded that “even the legislature has recognized
that this Court’s approval of the Lake County Superior Court Transfer Rule must therefore be
given effect to the extent that the addition of Section (e) of I.C. § 33-33-45-21(e) is found to con-
flict with the Transfer Rule.” (Br. in Opp. at 21-22.)



        The primacy of this Court’s rules of practice and procedure, recognized in Indiana Code
section 34-8-1-3 (“thereafter all laws in conflict with the supreme court’s rules have no further
force or effect”) does not apply to the transfer rule because the transfer rule is not a rule of this
Court. The Lake County courts adopted the transfer rule as part of their “Administrative Order
Adopting A Plan For The Allocation Of Judicial Resources For Calendar Year 2000,” in re-
sponse to an order issued by this Court on July 16, 1999, requiring the development of local
caseload plans; this Court reviewed and approved that plan, noting the Court intended to require
periodic revision of the local plan. (Relators’ Record at 6.) But our order approving the Lake
County courts’ plan was not a rule of this Court governing practice and procedure “promulgated
and tak[ing] effect under the rules adopted by the supreme court,” and, so, the transfer rule is not
a rule of this Court as contemplated in Indiana Code section 34-8-1-3.5 Moreover, while trial
courts may establish local rules for their own governance, those local rules may not conflict with
the rules established by this Court or by statute. Gill v. Evansville Sheet Metal Works, Inc., 970

5
  Cf. State v. Holtsclaw, 977 N.E.2d 348, 350 (Ind. 2012) (citing I.C. § 34-8-1-3 and holding that where
there was a conflict between I.C. § 35-38-4-2 and Indiana Appellate Rule 9 (a rule promulgated by this
Court under the rule-making procedure set out in Trial Rule 80) regarding the amount of time the State
has to initiate an appeal in a criminal case, “the former must give way to the latter.”).
                                                   6
N.E.2d 633, 645-46 (Ind. 2012) (citing I.C. § 34-8-1-4). Consequently, we disagree with the
Judges’ assertion that the local transfer rule trumps, by operation of Indiana Code section 34-8-1-
3, the prohibition on transfer of a non-eligible judge in Indiana Code section 33-33-45-21(e).



       To the extent the Judges suggest Indiana Code section 33-33-45-21(e) is unconstitutional,
again we disagree. A statute is presumed constitutional; a party challenging its constitutionality
must rebut that presumption. McManus v. State, 814 N.E.2d 253, 255 (Ind. 2004). The pre-
sumption of constitutionality has not been overcome.



       The Indiana Constitution divides the functions of the government into three departments
(the Legislative, the Executive, and the Judicial) and provides that “no person, charged with offi-
cial duties under one of these departments, shall exercise any of the functions of another, except
as in this Constitution expressly provided.” Ind. Const. art. 3, § 1. Generally, this provision rec-
ognizes “that each branch of the government has specific duties and powers that may not be
usurped or infringed upon by the other branches of government.” State v. Monfort, 723 N.E.2d
407, 411 (Ind. 2000).



       The Indiana Constitution gives the Legislature the power to create superior courts.
Monford, 723 N.E.2d at 410; see Ind. Const. art. 7, § 1 (“The judicial power of the State shall be
vested in one Supreme Court, one Court of Appeals, Circuit Courts, and such other courts as the
General Assembly may establish.”). The Judges identify no authority precluding the Legislature
from also providing a method for selection of the judges for the courts it creates. See In re Pub-
lic Law No. 305 and Public Law No. 309 of Indiana Acts of 1975, 263 Ind. 506, 334 N.E.2d 659,
671-72 (1975) (holding that new legislation providing for non-partisan elections as the method
for filling future vacancies that would occur in three new judgeship positions created for the
Vanderburgh Superior Court was “a decision of the legislature which is within their power to
make.”). Moreover, the prohibition on transfer in Indiana Code section 33-33-45-21(e) is not
unique; it is only one example of legislative limitation on a superior court’s transfer of judges
from one division to another division. See, e.g., I.C. § 33-33-2-39(a) (providing that in Allen


                                                 7
Superior Court, a judge may transfer divisions but only once); I.C. § 33-33-45-21(c) (providing
that in Lake Superior Court, “a senior judge of any division may not be reassigned or rotated to
another division under this subsection.”).



       All of this leads us to conclude that Indiana Code section 33-33-45-21(e) is constitution-
al, applies here, and precludes the Judges from transferring, rotating, or reassigning Judge
Schiralli from the County Division to the Juvenile Division. This prohibition, however, does not
preclude Judge Schiralli from applying to be appointed, under the merit-selection process in In-
diana Code section 33-33-45-38, to fill a vacancy in the other divisions of the court. See I.C. §
33-33-45-21(e).



                                                II.

       Although we grant part of the relief the Magistrates seek, we decline the Magistrates’
broader argument that no Judge may be reassigned to the Juvenile Division because “there is no
legal basis to permit the transfer of any Judge in the Superior Court of Lake County from one
division to another.” (Relators’ Br. at 12 (emphasis added).)


       The Lake Superior Court “may make and adopt rules and regulations for conducting the
business of the court….” I.C. § 33-33-45-8(a). And it “by rule may reassign a judge of the court
from one (1) division to another if the court determines that the change is necessary for the effi-
cient operation of the court.” I.C. § 33-33-45-21(c).


       The Magistrates contend the Superior Court has no rule in effect allowing for such a
transfer. Although the Magistrates and the Attorney General argue that the Superior Court’s
transfer rule expired or was superseded, those arguments are unavailing. The record shows that
the Judges adopted the transfer rule as part of a case management plan for the efficient operation
of the Superior Court more than a decade ago, received Supreme Court approval of that plan, and
have continually relied on their transfer rule since then. For purposes of this original action, we
conclude that the Lake Superior Court follows a rule — the transfer rule — for efficiently operat-


                                                8
ing and conducting its business. Therefore, we deny the Magistrates’ request for a permanent
writ that would declare that no Judge may be transferred or reassigned to the Juvenile Division.


                                           Conclusion


       Indiana Code section 33-33-45-21(e) prevents the Judges from reassigning, transferring,
or rotating Judge Schiralli from the County Division to the Juvenile Division. However, this
prohibition does not preclude him from applying to be appointed, under the merit-selection
process in Indiana Code section 33-33-45-38, to fill a vacancy in the other divisions of the court.
The Court denies the Magistrates’ request for a permanent writ that would more broadly prohibit
any current Judge from being transferred or reassigned to the Juvenile Division.


       This opinion is final. No petitions for rehearing or motions to reconsider shall be filed.
Orig. Act. R. 5(C). The Clerk is directed to certify this opinion as final and to send a certified
copy to each of the Respondent Judges and to all counsel of record.




Dickson, C.J., and Rucker, David, Massa, and Rush, JJ., concur.




                                                9
