Gersh Zavodnik v. Irene Harper , 2014 Ind. LEXIS 753 ( 2014 )

APPELLANT PRO SE ATTORNEY FOR APPELLEE
Chad D. Wuertz
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________ Sep 30 2014, 11:28 am
No. 49A04-1307-PL-316
GERSH ZAVODNIK,
Appellant (Plaintiff below),
v.
IRENE HARPER,
Appellee (Defendant below).
_________________________________
Appeal from the Marion Superior Court, Civil Division 3, No. 49D03-1008-PL-036797
The Honorable Patrick L. McCarty, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-1307-PL-316
_________________________________
September 30, 2014
Per Curiam.
The trial court dismissed Mr. Zavodnik's action under Indiana Trial Rule 41(E), and the
Indiana Court of Appeals dismissed his appeal for failure to file a timely brief and appendix. We
now deny transfer by this per curiam opinion, which also gives guidance to this state's courts on
some options when confronted with abusive and vexatious litigation practices.
Background
Plaintiff Gersh Zavodnik is a prolific, abusive litigant. A search of his name brings up
123 cases in Marion County and other counties on the Odyssey case management system (which
is not yet in place in all Indiana counties). All but three of those cases were filed since January
2008. Mr. Zavodnik is also a party in thirty-four cases before the Court of Appeals and this
Court, including twenty-three special judge requests.
Mr. Zavodnik's submissions on appeal do not give any indication of the nature of his
complaint against the defendant, but the trial court's fifteen-page chronological case summary
("CCS") for this case shows it was filed on August 20, 2010. After procedural maneuvering by
Mr. Zavodnik that included a change of judge under Indiana Trial Rule 53.1, several more
unsuccessful attempts for another change of judge, and an attempt to disqualify the defendant's
counsel, the trial court dismissed the case on April 4, 2013, for failure to prosecute or comply
with applicable rules. T.R. 41(E). After the trial court denied Mr. Zavodnik's motion to correct
error, he filed a motion to proceed in forma pauperis ("IFP"), presumably on appeal, which the
trial court also denied.
Mr. Zavodnik filed a timely notice of appeal on July 2, 2013, and a motion to proceed
IFP on September 20, 2013. The Court of Appeals denied that motion, two subsequent motions
to reconsider, and a motion by Mr. Zavodnik to compel the trial court to correct the record. It
also set a deadline to file an appellant's brief by November 8, 2013. Mr. Zavodnik neither filed a
brief nor paid the filing fee. On appellee's motion, the Court of Appeals dismissed the appeal
with prejudice on January 29, 2014, citing Mr. Zavodnik's failure to file a timely brief and
appendix. This Court granted Mr. Zavodnik leave to file a petition to transfer without pre-paying
the filing fee, and his transfer petition was shown as filed on April 29, 2014. The appellate CCS
spans over six pages.
The trial court CCS and appellate CCS reveal numerous motions and other filings that are
defective, repetitive, and lacking merit. Mr. Zavodnik's filings often contain bewilderingly
lengthy titles, one example being:
Appellant's Verified Motion to Compel the Clerk of the Trial Court to Provide the
Entire Record as Opposed to the Partial Record and to Extend Time for Brief to
Be Filed Due to the Fact that the Appellant Does Not Have the Full Certified
Record and the Record Needs to Be Complete and Fixed (Which Will Require
Time) Because of the Clerk's Error in Providing Only a Partial Record or
Alternatively to Relinquish Jurisdiction Back to the Trial Court by Mandating It
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to Fix the Record (the CCS) and to Provide the Court of Appeals and the Parties
with the Corrected Full and Complete Fixed Record or Alternatively to Order the
Clerk of this Court to Fix the CCS and to Provide the Complete Record or
Alternatively to Allow the Appellant to Use His Own CCS Printed out by Him
from the Odyssey Website.
One effect of such titles is to burden the personnel making entries on the CCS. Mr. Zavodnik's
filings are similarly voluminous—for two examples, his response to the appellee's two-page
motion to dismiss in this case was close to an inch thick; and in the trial court, the defendant filed
a motion to strike "Plaintiff's 4.3 Pound Motion for Default Judgment." Such voluminous filings
burden both opposing parties and the courts, the latter of which must house, store, and in some
cases eventually microfilm the filings.
Nothing Mr. Zavodnik has filed or done in this case shows any desire to litigate this case
expeditiously to resolution on the merits. Rather, he has burdened the opposing party and the
courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and
often meritless filings. And this Court has previously warned Mr. Zavodnik against continuing
such abusive and burdensome litigation tactics. Last year, we described his voluminous,
dilatory, and often meritless filings in another case, and the burdens imposed by those tactics:
The trial court Chronological Case Summary for this case shows that the
case was originally filed on September 27, 2010. During the time this case has
been pending, the Plaintiff has filed voluminous motions, notices, objections, and
other documents, including numerous attempts to obtain a change of judge or
venue. Several judges have already presided over this case. Since January 17,
2013, the Plaintiff has filed six applications for withdrawal of the case and
appointment of a special judge under Trial Rule 53.1 for the trial court's alleged
failure to timely act on various matters. Each time he filed such an application, he
prevented the trial court judge from advancing the case until the application was
resolved, making it more difficult for the judge to rule on pending matters. Each
time he filed such an application, the Executive Director of the Division of State
Court Administration was required to analyze the allegations to determine
whether a violation had occurred. The Executive Director determined that five of
the Plaintiff's applications stated no cause for withdrawing the case under Trial
Rule 53.1. However, on August 28, 2013, the Executive Director determined that
there had been a delay that would support withdrawing the case under Trial Rule
53.1.
By order dated September 9, 2013, this Court entered an order, signed by
Chief Justice Dickson, remanding jurisdiction to the trial court, finding that
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naming a new judge would not accomplish the purpose of Trial Rule 53.1, which
is to expedite litigation.
On October 17, 2013, the Plaintiff filed a 200-page "Plaintiff's Set of the
Verified Motions" ("Set of Motions"), accompanied by an assortment of exhibits
that are nearly three inches thick. On October 22, 2013, the Plaintiff filed a 173-
page "Plaintiff's Supplemental Motion in Objection to Justice Dickson's Order to
Remand Judge McCarty Back on This Case and in Objection to Judge McCarty
Presiding over This Case in Numerous Violations of Rules, Law and Zavodnik's
Rights" ("Supplemental Motion"), accompanied by a half-inch stack of exhibits.
The Plaintiff's central request is for appointment of a three-Justice panel to review
the September 9, 2013, order signed by the Chief Justice. The Plaintiff asserts that
the Chief Justice had no authority to remand jurisdiction to the current trial court
judge.
Zavodnik v. Margulyan, Cause No. 49S01-1302-SJ-110 (Oct. 25, 2013). Mr. Zavodnik argued
that this Court had no authority to remand jurisdiction without naming a new judge. Id. We
rejected that claim because Trial Rule 53.1(E)(2) gives this Court discretion to “appoint[] . . . a
special judge or such other action deemed appropriate by the Supreme Court” if the time
limits of Rules 53.1 or 53.2 have expired. Id. But we also issued a warning to Mr. Zavodnik:
. . . Plaintiff appears to be using Trial Rule 53.1 in a scattershot manner to
hinder the progress of this litigation and to burden the trial court, this Court, and
its agencies. Further misuse of Trial Rule 53.1 or any other litigation
procedure may subject the Plaintiff to sanctions.
The Court finds no basis for the Plaintiff's request to review or reconsider
this Court's September 9, 2013, order remanding jurisdiction of this case to Judge
McCarty or for any of the other requests in the 373 pages of his motions.
Id. (emphasis added).
As a matter of grace, this Court will once again decline to impose sanctions on Mr.
Zavodnik. But we will provide the courts of this state with guidance on options available to
sanction and otherwise restrict the abusive and burdensome litigation tactics practiced by Mr.
Zavodnik and a small number of other litigants in this state.
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Discussion
On transfer, Mr. Zavodnik argues that the trial court and Court of Appeals (1)
erroneously denied him IFP status, (2) erroneously refused to “correct, fix and complete the
record,” and (3) repeatedly discriminated against him. His first claim is moot, because the Court of
Appeals did not dismiss for failure to pay the filing fee, but for failure to timely file his brief and
appendix in accordance with well-settled law. His second claim is waived because he fails to
show any effort to present his request to the trial court in the first instance as the Appellate Rules
require. And his final claim is waived because he fails to support it with cogent argument or
citation to relevant authority. We therefore deny transfer and turn our attention to procedures for
trial courts to curtail abusive litigation practices.
I. Litigants Do Not Have a License to Abuse the Litigation Process
Every resource that courts devote to an abusive litigant is a resource denied to other
legitimate cases with good-faith litigants. See Sumbry v. Boklund, 836 N.E.2d 430, 432 (Ind.
2005). There is no right to engage in abusive litigation, and the state has a legitimate interest in
the preservation of valuable judicial and administrative resources. See Parks v. Madison Cnty.,
783 N.E.2d 711, 724 (Ind. Ct. App. 2002), trans. denied.
A. Statutes and rules addressing abusive litigation practices. Both the Indiana General
Assembly and this Court have given the courts of this state tools to deal with abusive litigation
practices. Indiana Code § 34–52–1–1(b) (2008) allows a court in a civil action to award
attorney's fees to the prevailing party if the court finds that the other party asserted a claim that
was frivolous, unreasonable, or groundless, or litigated an action in bad faith. And because the
threat of monetary sanctions may do little to deter abusive litigants who are essentially judgment-
proof, the Indiana General Assembly has enacted procedures to prevent abusive civil litigation
by criminal "offenders." Indiana Code § 34-58-1-2 (2008) ("the Screening Statute") authorizes a
court to review an offender’s claim and bar it from going forward if it is frivolous (that is, made
primarily to harass or lacking an arguable basis in law or fact), is not a claim on which relief may
be granted, or seeks monetary damages from a defendant who is immune from such relief.
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Then under Indiana Code § 34-10-1-3 (2009) ("the Three Strikes Statute"), offenders who
have had three suits dismissed under the Screening Statute are prohibited from filing new IFP
complaints unless they are "in immediate danger of bodily injury." See also Smith v. Wrigley,
925 N.E.2d 747 (Ind. Ct. App. 2010) (holding the Three Strikes Statute does not violate the open
courts or privileges and immunities clauses of the Indiana Constitution), trans. denied.
Finally, rules of procedure promulgated by this Court allow courts to assess damages and
other sanctions to those engaging in abusive tactics, including failure to cooperate with
discovery, see Ind. Trial Rule 37; making affidavits relating to summary judgment in bad faith,
see T.R. 56(G); bad faith filing in the wrong county, see T.R. 75(C); and filing an appeal that is
frivolous or in bad faith, see Ind. Appellate Rule 66(E).
B. Inherent power of courts to limit abusive litigation practices. Even apart from the
Screening and Three Strikes Statutes (which do not apply to abusive litigants who are not
"offenders") or the Trial Rules, courts have inherent authority to impose reasonable restrictions
on any abusive litigant. Prior to the enactment of the Screening and Three Strikes Statutes, the
Court of Appeals had established special pre-filing screening requirements for particular
offenders with histories of repeated, frivolous litigation. See Sumbry v. Misc. Docket Sheet for
Year 2003, 811 N.E.2d 457 (Ind. Ct. App. 2004), trans. denied; Sims v. Scopelitis, 797 N.E.2d
348 (Ind. Ct. App. 2003), trans. denied; Parks v. State, 789 N.E.2d 40 (Ind. Ct. App. 2003),
trans. denied. The litigation history of these particular litigants consisted of repeated attempts to
relitigate matters that had already been fully litigated and/or suits against defendants who were
immune. The restrictions in Sims, which are similar to those in the other two cases, follow:
(1) Prior to filing any such lawsuit, Sims shall submit to the trial court a copy of
the complaint he wishes to file; (2) Sims shall also file a copy of all of the
relevant documents pertaining to the ultimate disposition of each and every
previous case instituted by Sims against the same defendant or emanating, directly
or indirectly, from any alleged conspiracy by public officials . . . ; (3) Sims shall
file a legal brief, complete with competent legal argument and citation to
authority, explaining to the court why the new action is not subject to dismissal by
application of the doctrines of res judicata, collateral estoppel, or law of the case.
If, after reviewing these materials, the trial court determines that the proposed
lawsuit is frivolous, malicious, fails to state a claim upon which relief may be
granted, or is otherwise utterly without merit, the court shall dismiss with
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prejudice the proposed complaint; (4) Sims is required to verify his new
complaint pursuant to Indiana Trial Rule 11(B); and (5) Sims is specifically
instructed to attach to such complaint a separate copy of this final section of the
instant opinion.
797 N.E.2d at 352.
In a case in which a taxpayer brought an action seeking to enjoin the sale of bonds to
finance construction of a new high school, the trial court dismissed the action and enjoined the
taxpayer and other members of an association of which the taxpayer was a member from filing
further suits to delay construction and financing of new high school. In affirming, this Court
stated:
As to the trial court's injunction preventing Huber and other members of
the Franklin County Taxpayers Association from filing further actions, we find no
error. Injunctive relief may be granted when the plaintiff's production of
litigation amounts to an abuse of process. The trial court merely enjoined the
parties from filing public lawsuits on the same subject matter—suits which they
had no right to file.
Huber v. Franklin Cnty. Cmty. Sch. Corp. Bd. of Trustees, 507 N.E.2d 233, 238 (Ind. 1987)
(emphasis added; citations omitted).
In Gorman v. Gorman, 871 N.E.2d 1019 (Ind. Ct. App. 2007), trans. denied, the Court of
Appeals held that a trial court acted within its discretion when it required a former wife to post a
$50,000 appeal bond in her action against her former husband and his former attorney in which
she alleged numerous claims, including fraud, criminal conversion, and obstruction of justice.
Although the trial court awarded substantial amounts to the former husband and former attorney
in actual and punitive damages after finding that the former wife's claims were frivolous, damage
awards would not serve as a deterrent to prevent filing frivolous appeals since the former wife
was essentially judgment-proof. In addition, as a sanction for filing frivolous appeals, the Court
of Appeals dismissed the former wife's appeals with prejudice and imposed an order that
enjoined her from filing future appeals without seeking leave of the Court of Appeals. The clerk
was ordered to return unfiled any documents she attempted to file in violation of this order.
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Courts in other jurisdictions have also imposed restrictions on abusive litigants. In
Federal Land Bank of St. Paul v. Ziebarth, 520 N.W.2d 51 (N.D. 2004), the North Dakota
Supreme Court held that the “open courts” provision of North Dakota's Constitution does not
confer an absolute right of access to courts, but must be interpreted in light of superior rights of
public and necessities of occasion and may, under appropriate circumstances, be limited by
narrowly tailored injunctive relief. The court upheld an injunction precluding a frequent litigant
from further litigation on a mortgage foreclosure and related issues without first paying prior
judgments or obtaining leave of court. See also Matter of Whitaker, 8 Cal.Rptr.2d 249 (Cal.
App. 1992) (barring further pro se litigation by prolific, abusive litigant without first obtaining
leave of court).
The courts of this state, after due consideration of an abusive litigant's entire history, may
fashion and impose reasonable conditions and restrictions, guided by those in the statutes, rules,
and cases outlined above, on the litigant's ability to commence or continue actions in this state
that are tailored to the litigant's particular abusive practices.
II. Pro Se Litigants Must Play by the Rules
Mr. Zavodnik has argued that the system is unfairly biased against him as a pro se
litigant. Mr. Zavodnik has every right to represent himself in legal proceedings, but a pro se
litigant is held to the same standards as a trained attorney and is afforded no inherent leniency
simply by virtue of being self-represented. See Matter of G.P.U., 4 N.E.3d 1158 (Ind. 2014).
"[O]ne acting pro se has no license to harass others, clog the judicial machinery with meritless
litigation, and abuse already overloaded court dockets." Farguson v. MBank Houston, N.A., 808
F.2d 358, 359 (5th Cir. 1986) (denying IFP application and dismissing appeal). Even if a court
may take reasonable steps to prevent a good faith pro se litigant from being placed at an unfair
disadvantage, an abusive litigant can expect no latitude.
Contrary to Mr. Zavodnik's arguments, the system actually imposes more restrictions on
represented parties, at least indirectly through regulation of their attorneys. For instance, an
attorney may be sanctioned for a willful violation of the rule that an attorney's signature on a
pleading constitutes a certificate that the attorney has read the pleading; that to the best of the
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attorney's knowledge, information, and belief, there is good ground to support it; and that it is not
interposed for delay. See T.R. 11(A). In addition, attorneys may be disciplined for abusive
litigation practices. See, e.g., Prof. Cond. Rules 3.1 (asserting a position for which there is no
non-frivolous basis in law or fact); 3.3(a)(1) (knowingly making a false statement of fact or law
to a tribunal); 3.4(d) (making a frivolous discovery request); 8.4(d) (engaging in conduct
prejudicial to the administration of justice). Because these rules have no application to pro se
litigants, it is all the more important that courts be able to fashion appropriate sanctions for
abusive pro se litigants.
III. Litigants Do Not Have an Unfettered Right to Proceed In Forma Pauperis
It has long been the policy of this state that arbitrary economic discrimination in the halls
of justice is wrong, and from the date of its admission to the Union, Indiana has been a leader in
providing indigent persons with fair treatment while in court. See Campbell v. Criterion Group,
605 N.E.2d 150, 157, 159 (Ind. 1992). To this end, a person without sufficient means to
prosecute an action may apply for leave to prosecute as an indigent person, i.e., IFP, and thus be
relieved of certain requirements, including the requirement to prepay a filing fee. See, e.g., Ind.
Code § 34-10-1-1 (2008) ("IFP Statute"); Ind. Code § 34-10-1-2(b) (2008); Ind. Appellate Rule
40.
However, the right to invoke this privilege is not without conditions or limits. The IFP
Statute places the burden upon the party seeking to proceed IFP to demonstrate that he or she is
both indigent and without sufficient means to prosecute the action or bring an appeal. See Sholes
v. Sholes, 760 N.E.2d 156, 160 (Ind. 2001); Campbell, 605 N.E.2d at 159. A request to proceed
IFP necessarily requires the consideration of relevant facts, which may require an evidentiary
hearing. See Offutt v. Sheehan, 168 Ind. App. 491, 344 N.E.2d 92, 101 (1976). A court need not
take an applicant's representations and documents at face value, 1 but in appropriate
circumstances should inquire into the practicalities of the applicant's financial resources. We
note that Mr. Zavodnik has somehow summoned the financial wherewithal to produce probably
1
We note that in support of his request for IFP status, Mr. Zavodnik provided the Court of Appeals with a
stack of documents from the Social Security Administration, primarily concerning members of his family
and consisting mostly of irrelevant boilerplate information.
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tens of thousands of pages of filings in well over 100 cases he has brought. Courts may
rightfully explore how such an applicant can afford such expenses but claim to lack sufficient
means to pay a filing fee. "Indigency determinations present a subject for the sound discretion of
the trial court, and a very clear case of abuse must be shown before this discretionary power can
be interfered with." Campbell, 605 N.E.2d at 159.
In addition, the legislature has provided: "The court shall deny an application made
under [the IFP Statute] if the court determines . . . [t]he applicant is unlikely to prevail on the
applicant's claim or defense." Ind. Code § 34-10-1-2(d). Without defining the exact parameters
of this directive, we conclude that IFP status may be properly denied if the court determines that
the applicant is asserting a claim that is frivolous or upon which relief cannot be granted, is
seeking monetary relief from a defendant who is immune, or is attempting to relitigate a claim
that is barred by res judicata, collateral estoppel, or law of the case. Cf. Ind. Code § 34-58-1-2(the Screening Statute). A court may also revoke a litigant's IFP status as a sanction for abusive
litigation practices during a proceeding, including baseless attempts to obtain a change of judge
under T.R. 53.1 or otherwise. We note that even the United States Supreme Court has limited an
abusive petitioner's ability to proceed IFP based on his history of filing frivolous petitions. See
Matter of McDonald, 489 U.S. 180 (1989). Those who abuse the state's legal system cannot
expect to do it with the aid of a state subsidy.
IV. Courts May Place Reasonable Limits on Filings by Abusive Litigants
This Court's rules of procedure impose page or word limitations, formatting
requirements, and organizational mandates on some documents. E.g., Ind. Appellate Rules 43,
44, and 46. Mostly, however, the rules allow broad latitude in how litigants present their
requests and arguments to a court. Most litigants do not abuse the rules' general lack of explicit
restrictions. But Mr. Zavodnik has, by habitually presenting filings and supporting documents
that are massive, disorganized, repetitive, at times barely legible, and often of dubious relevance.
He files motions that are overlapping, supplements to motions, and repeated motions for
reconsideration. In addition, his filings often do not conform with the explicit requirements of
the rules, leading to return by the clerk for correction and deemed filed on the date tendered
when eventually corrected. These practices create confusion and put an enormous burden on the
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court, its staff, the clerk, and opposing parties. When a litigant makes a practice of such abusive
filings, a court may place reasonable restrictions on the litigant's filings tailored to the particular
abuses of that litigant.
After due consideration of a litigant's history of abuse, a court may be justified in
imposing restrictions such as the following: 2
 Require the litigant to accompany future pleadings with an affidavit certifying under
penalty of perjury that the allegations are true to the best of the litigant's knowledge,
information, and belief.
 Direct the litigant to attach to future complaints a list of all cases previously filed
involving the same, similar, or related cause of action.
 Direct that future pleadings will be stricken if they do not meet the requirements that a
pleading must contain "a short and plain statement of the claim showing that the pleader
is entitled to relief" and that "[e]ach averment of a pleading shall be simple, concise, and
direct." T.R. 8(A)(1) and (E)(1).
 Require the litigant to state clearly and concisely at the beginning of a motion the relief
requested.
 Require the litigant to provide specific page citations to documents alleged by the litigant
to support an argument or position.
 Limit the litigant's ability to request reconsideration and to file repetitive motions.
 Limit the number of pages or words of pleadings, motions, and other filings.
 Limit the length of the title that may be used for a filing.
 Limit the amount or length of exhibits or attachments that may accompany a filing.
 Instruct the clerk to reject without return for correction future filings that do not strictly
comply with applicable rules of procedure and conditions ordered by the court.
V. Judges Should Not Bow to Baseless Demands for Disqualification
Mr. Zavodnik's abusive litigation practices in this case and others have included unrelenting
attempts to replace the judges presiding over his cases for alleged delays in rulings pursuant to
2
These suggestions are taken in part from Procup v. Strickland, 792 F.2d 1069, 1072-73 and 1073 n.9
(11th Cir. 1986).
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T.R. 53.1 and for alleged bias, prejudice, or misconduct by the judge. But judges presiding over
a case are not required to disqualify themselves as a result of a litigant's unfounded accusations,
abusive tactics, or attempts to manipulate the system. To the contrary, judges have an
affirmative duty to preside over cases unless disqualification is mandatory. Rule 2.7 of the Code
of Judicial Conduct states: "A judge shall hear and decide matters assigned to the judge, except
when disqualification is required by Rule 2.11 or other law." The comment to this rule provides:
Judges must be available to decide the matters that come before the court.
Although there are times when disqualification is necessary to protect the rights of
litigants and preserve public confidence in the independence, integrity, and
impartiality of the judiciary, judges must be available to decide matters that come
before the courts. Unwarranted disqualification may bring public disfavor to the
court and to the judge personally. The dignity of the court, the judge's respect for
fulfillment of judicial duties, and a proper concern for the burdens that may be
imposed upon the judge's colleagues require that a judge not use disqualification
to avoid cases that present difficult, controversial, or unpopular issues.
Correspondingly, Rule 2.11(A) of the Code of Judicial Conduct requires disqualification only
when "the judge's impartiality might reasonably be questioned, including [when the] judge has a
personal bias or prejudice concerning a party . . . ." (Emphasis added.)
The law starts with the presumption that a judge is unbiased and unprejudiced. A judge's
exposure to evidence through judicial sources is generally insufficient to establish bias. The fact
that a litigant has appeared before a judge in prior cases does not establish bias or prejudice.
Prejudice is not inferred from adverse judicial rulings. Mandatory disqualification requires a
showing of a personal, individual bias against the litigant. See Garland v. State, 788 N.E.2d 425,
433 (Ind. 2003). A raw accusation of bias creates no reasonable question about the judge's
impartiality. See Tri Lakes Regional Sewer Dist. v. Geiger, 830 N.E.2d 890, 891 (Ind. 2005). A
party cannot be permitted to disqualify a judge simply by alleging bias. See id.In Matter of Appointment of a Special Judge In Wabash Circuit Court, while a
proceeding was pending in the Wabash Circuit Court, the defendants (a husband and wife) filed a
third party complaint naming the presiding judge as a third party defendant. 500 N.E.2d 751(Ind. 1986). The judge then filed a certification for the appointment of a special judge under
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T.R. 79, which requires recusal when a judge is a party to the proceeding. But this Court
declined to appoint a special judge:
The circumstances so revealed show prima facie that the defendants in a
civil action are engaged in a pattern of conduct the purpose of which is to totally
stultify the judicial power of the Wabash Circuit Court as it may be directed
toward them. . . . Their goal of insulating themselves from judicial authority is
being accomplished through the artifice of filing a claim against the sitting judge,
thereby imposing upon the judge the automatic duty of self-disqualification
required by said rule. If this can be successfully achieved by the filing of specious
claims, it can be repeated when any successor judge assumes jurisdiction in their
case. The end result of the success of such a plan is constitutionally intolerable.
....
Within these unusual circumstances, it would be pointless to appoint a
successor judge to assume the jurisdiction of the Wabash Circuit Court in the case
pending below. There is a strong likelihood that any such successor judge would
meet the same fate as did Judge Ford and he or she would be made the subject of
yet another claim before a ruling could be made. We therefore direct that the
Honorable Lynn Ford reassume jurisdiction in Cause No. C-86-113 to conduct a
summary, yet due process hearing upon the question of whether the claim in C-
86-113 or any other claim of which the court has knowledge, presents a
reasonable basis for disqualification. If the Court has jurisdiction of any such
claim and such claim is specious and a sham and intended solely to evade court
jurisdiction, it should strike such claim. If the claim has no reasonable basis, the
court should not disqualify.
Id. at 752-53. The case illustrates that litigants who engage in baseless, abusive attempts to
obtain a change of judge should expect those attempts to fail and may face sanctions.
Conclusion
This matter has come before the Indiana Supreme Court on a petition to transfer
jurisdiction following the issuance of a decision by the Court of Appeals. The petition was filed
pursuant to Indiana Appellate Rule 57. The Court has reviewed the decision of the Court of
Appeals. Any record on appeal that was submitted has been made available to the Court for
review, along with all briefs that may have been filed in the Court of Appeals and all the
materials filed in connection with the request to transfer jurisdiction. Each participating member
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of the Court has voted on the petition. Each participating member has had the opportunity to
voice that Justice’s views on the case in conference with the other Justices.
Being duly advised, the Court DENIES the appellant’s petition to transfer jurisdiction.
The Court refrains from imposing sanctions or restrictions at this point, but Mr. Zavodnik can
expect any further abusive litigation practices in any judicial forum in this state to be met with
appropriate sanctions and restrictions. No petition for rehearing is permitted. See App. R. 58(B).
All Justices concur.
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