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Annual Supreme Court review shows more agreement, shifts in alignment

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Welcoming a new justice was undeniably the most notable moment for the Indiana Supreme Court in 2010. That lineup change captured the headlines, but it’s not the only item of interest for Indiana court-watchers.

Activity before and after the retirement of Justice Theodore Boehm and the addition of Justice Steven David in the fall of 2010 provides context for how that personnel change has impacted the court, and it offers a crystal ball of sorts for lawyers to use when deciding how to advise their clients.

iscIndianapolis attorneys P. Jason Stephenson and Mark Crandley, along with associates Jeanine Kerridge and Jeff Peabody, all of Barnes & Thornburg, have finished their latest annual review of the state Supreme Court’s activity. The review is published each summer in the Indiana Law Review, and this is the 20th time the report’s been compiled since Indianapolis attorney Kevin Betz started it back in 1991.

What makes this year’s review stand out the most is that it reaches back more than a decade to the last time Indiana experienced a change in justices. But the shift in the court is only part of the story, according to one of the review’s main authors.

Already this year, Justice David’s impact has been pivotal in reshaping alignments between the other justices and his presence is casting a new tone for the court. His voice is even recasting some of the final decisions made by Justice Boehm before his departure.

“That transition is certainly significant, you can’t overlook it,” Stephenson said. “When writing a transfer petition or arguing at the court, you’ll want to consider

his views to the extent that you can because his opinion clearly matters as the review shows. But it’s one piece of a more interesting puzzle that had some surprises last year.”

Overall workload

This year’s review shows the justices handed down 108 opinions in 2010, an increase from the past two years and the first time since 2006 that the court topped 100. Stephenson speculated that Justice Boehm’s departure in September and Justice David’s arrival in October might have motivated the justices to focus more on pending cases and issues, but that’s not something he can determine from the data.

A multi-year trend continued with a drop in the number of transfer requests – 190 less than the year before and the third straight decrease.

“There is no obvious explanation for this trend,” the review states. “One factor might be that the bar has become more educated about the chances that transfer will be granted and lawyers have therefore become more selective.”

The court granted only 11.1 percent of requests, nearly two-thirds being civil cases. The number of reversals dropped again as the justices reversed in only 63.5 percent of the cases it accepted.

All together, Stephenson says the trend is clear: You’re still likely to have a lower decision reversed if the court accepts an appeal, but it’s not as certain as it once was.

“It’s interesting to me to see the court is accepting more and affirming more, and it seems like the court is more often putting its stamp on an issue,” he said.

Agreement and alignments

One of the most-watched aspects of the annual review is how the justices vote on cases and how often they agree. In past years, disagreement has grown between the five jurists, and Justice Robert Rucker stood out – last year’s review designated him as “The Great Dissenter” because of the continued trend in his dissents.

But 2010 saw a change in agreement and alignment.

Unanimous opinions increased to 78 percent, up from the 63 percent unanimity in 2009 and 62 percent in 2008. Split decisions dropped last year – occurring in only 14 cases, compared to the 18 in 2009 and 23 in 2008.

“I was intrigued to see the agreement and it’s a fairly significant change,” Stephenson said. “It’s dangerous to ascribe that to any one factor, such as the types of issues, and it’s hard to say if that’s a trend or just a one-year event. We’ll have to watch that, particularly with Justice David a part of the court.”

The most noteworthy development is that Justice Rucker bucked the trend and agreed with the other justices (excluding Justice David) in an average 84 percent of all cases. He agreed with Justice Frank Sullivan 89.4 percent of the time, opposite from the year before when the two were the least aligned of any two justices. Three different pairs of justices were aligned more than 90 percent of the time on criminal cases – something that hasn’t happened in recent years. In 2009, the least aligned justices were Justices Sullivan and Brent Dickson at 78.1 percent.

indiana supreme courtAfter taking the bench, Justice David participated in 16 cases before the end of the calendar year and demonstrated what the review describes as “an early hint of how crucial the new justice’s views might be going forward.” Most notably, he was in the majority on all three split decisions covering the insanity defense, the Indiana High School Athletic Association transfer rule, and double jeopardy issues. No other justice was in the majority for all three. He disagreed with other justices more on criminal cases than civil, the review shows.

In the 1990s, when the court experienced more frequent personnel changes, a common trend could be found for new members – they often sided with the chief justice. That trend continued with Justice David. He agreed with Chief Justice Randall Shepard on all nine civil cases the court considered from the time Justice David joined the court in October to the end of 2010 and in 94 percent of all cases he considered.

Stephenson said the chief justice has proven an effective leader who is able to pull the other justices together, particularly since he’s been somewhat of a moderate voice on the court who doesn’t express as many clear points of view as do Justices Rucker or Dickson.

With the lineup change happening so late in the year, Stephenson admits that much of the full story comes after the review period. A clear example of how Justice David’s vote has changed an outcome is in the case of David Hopper v. State, the final decision Justice Boehm wrote days before leaving the court. The decision was 3-2, with Chief Justice Shepard and Dickson dissenting from the majority that ordered a new requirement for pro se defendants but offering little guidance for trial courts. Earlier this year the court agreed to rehear that decision, and if Justice David continues sticking with the majority, the case may have a different outcome.

“He doesn’t appear timid for taking responsibility on opinions on controversial issues,” Stephenson said. “It’s fascinating to see David start out of the gate so strongly, and shows his experience as a trial judge giving him that foundation. We’ll see if that continues or tapers off some the longer he’s on the court.”

As Justice Boehm was viewed as a moderate voice on the court, Stephenson said it will be fascinating to watch to see if the chief justice becomes that same kind of moderate presence or if the absence of that middle ground leads to more disagreement.•
 

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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