Vern
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- Mar 2, 2017
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In all fairness, here's the text (bolding, colour and italisis by me):With great respect, I think we may be talking about two diff things. I am NOT commenting on the overall lack of ruling / ruling against her removal. I am not even looking at why the motion was invalid.
I am ONLY pointing out the the SCOIN agreed with the D that JG failed to rule within the time she should have.
I can’t keep trying to explain my point. I’m sad. I feel I’m usually much better at expressing myself in writing and didn’t imagine I had failed so hard here. Again though, thanks for the discussion.
I am hopefully now off to enjoy the weekend. I hope you are too!
The word may is not equal to will. To turn the may into an actual removal, further consideration would actually delve into whether or not the judge was justified in missing the 30 day deadline (there are exceptions and legally allowable reasons for non-response as already pointed out (Ie: the filing of repetetive motions seeking same thing). SCOIN did not even look at the reasons why the Judge missed her deadline - or whether or not she erred in doing so - because the defence repeatedly continued to file motions vice the required praecipe.According to T.R. 53.1(A), if a trial judge fails to rule on a motion or set the motion
for a hearing within 30 days, the cause may be withdrawn from the trial court.
Here's what the SCOIN cited for the reason that RA had no relief:
With this they are literally pointing out that the Defence Team (not the Judge) messed up and was wrong with what they filed (more motions rather than the praecipe).Similarly, the benefit of Trial Rules 53.1 or 53.2 may be waived where the deadline
for a ruling has passed, but rather than filing a praecipe to withdraw the cause,
a party files pleadings or otherwise takes voluntary action of record inconsistent with
that party's right to invoke those rules. See generally Board of Medical Registration v.
Turner, 241 Ind. 73, 77-78, 168 N.E.2d 193, 195 (1960)(applying a predecessor rule).
Nothing in SCOIN's ruling states that the Judge did in fact err in missing the deadlines (because the D Team messed up in ther filings and negated their own Franks Motions, SCOIN didn't even look that far). It does state that the Defence erred in their filings. And, we all know now as previously discussed that the filing of repetetive motions on same topic are one of the exceptions to requiring a Judge to respond in 30 days ... or at all.
I'm pretty certain that this ruling would/will hold up for/if any future appeals (ie: should RA be convicted) too, IMO, precisely because SCOIN had already ruled to keep Judge Gull on the case. Then the D Team, once re-instated, started firing in the Franks --- so Gull has probably covered her butt already with a simple "this has already been ruled upon (by SCOIN whose earlier decision kept her on the case) and nothing has changed since that ruling, so these Franks are repetitive thus require no response from me" arguement upon any appeal that may happen in the future.
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