dissenting.
The majority relies upon the Breitweis-ers' failure to timely respond to the proposed notice of default. The Breitweisers point out, however, that they did respond within the time allowed. They filed a verified complaint for writ of mandate, for temporary restraining order, and for preliminary and permanent injunction against the OEA and Judge Penrod, which clearly asserted: their .claim that Judge Penrod should. be disqualified and "could not properly make any decisions in the case let alone an entry of default." Br. of Appellants at 28.
Particularly significant is the fact that it was only after the Breitweisers filed motions to disqualify Judge Penrod and to vacate his orders, and for an expedited ruling on such motions, that the judge immediately entered his notice of proposed default against them. Judge Penrod's May 26, 1999, notice of proposed order of default recited as its basis the Breitweis-ers' failure to file discovery responses due *704May 21, seven days earlier, and their failure to respond to a motion to quash or modify a subpoena duces tecum, and to a motion to dismiss or for summary judgment, both of which responses were due on May 21, five days before the judge's notice of proposed order of default.3 The judge's issuance of the order suggests the possibility that it was motivated by vindictive retaliation.
Recognizing the importance of a neutral, unbiased adjudicatory decisionmaker as a core requirement of fair adjudicatory decision-making, the Court of Appeals concluded that the Breitweisers were entitled to judicial review on the merits of their claim that Judge Penrod improperly denied the disqualification motion. Breitweiser v. Indiana Office of Environmental Adjudication, 775 N.E.2d 1175, 1182 (Ind.Ct.App.2002). I agree.
RUCKER, J., concurs.
. Indiana Code § 4-21.5-3-24(a) authorizes a notice of proposed order of default only when a party fails to (1) file a "responsive pleading" required by statute or rule; (2) participate in a "pre-hearing conference, hearing or other stage of the proceeding;" or (3) "take action on a matter" for sixty days. None of the stated reasons for trial court action constituted a failure to file a responsive pleading or satisfies any of the other bases for the notice under the statute.