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Appellate rulings can create confusion for attorneys, trial judges

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Clear and concise court rulings are what judges hope can be produced, so that lawyers and lower courts can have guidance on how to address a particular legal issue.

But that doesn’t always happen.

Courts sometimes issue rulings that create confusion and muddy the legal waters, leaving attorneys and judges without clear guidance on a particular issue. Instead, those in the trenches are left scratching their heads and wondering how those higher court decisions should be interpreted and exactly how they trickle down them.

Indiana appellate attorneys and trial judges say that isn’t the trend for the state’s appellate courts, as they often are clear and concise and give adequate guidance. Still, the waters do get muddy at times.

That topic came up during the recent Judicial Nominating Commission interviews for an opening on the Supreme Court. When asked about the state of the judiciary, Miami Superior Judge Robert Spahr told commission members that trial courts are often “confused” by appellate opinions and that there’s not enough direction or clarity.

“It’s just confusing and unnecessary,” Judge Spahr told Indiana Lawyer after his interview. “It’s not evil, but it’s perplexing and unexplainable why this needs to be as complex as it’s become. We’re here in the trial courts for law and order … that’s our fundamental, absolute, bottom line job and the law must be predictable in any way we can get it to be predictable. But right now, there’s uncertainty.”

Other trial judges throughout the state have echoed similar concerns on multiple issues of the law, though most agree they see adequate rulings from the state appellate courts. Hoosier attorneys closely watching appellate rulings agree that uncertainty isn’t common, although they do see some uncertainty on various fronts.

“Uncertainty is not common in Indiana, but you always have areas of law that are constantly developing,” said appellate attorney Maggie Smith at Frost Brown Todd in Indianapolis. “I’d say that it’s more common in the criminal realm than in civil cases, because that area stays more in flux. But whatever type of issue you’re talking about, there are those cases and rulings that leave the waters very muddy and can be problematic for litigants.”

On the criminal side, Indiana has endured many noteworthy waves of uncertainty during the past decade as Supreme Court of the United States rulings have pulled the rug out from under the state courts and other still-developing issues have put clouds over the state’s criminal justice system. One of the most significant changes came with Blakely v. Washington in 2004 when the nation’s highest court declared most of the country’s sentencing structures unconstitutional and forced those jurisdictions – including Indiana – to interpret how the systems would be remodeled. Lines of litigation came from that, and the state justices here continue dealing with that aftermath.

Sex offender statutes and caselaw has become more prevalent in recent years, as well, and one issue that came to a head last year was the Indiana Supreme Court ruling in Richard P. Wallace v. State of Indiana, No. 49S02-0803-CR-138 that determined a man should be removed from the statewide registry because he was convicted and sentenced before that requirement law was passed. But it threw sex offender registry procedures into disarray as the state’s Department of Correction and local judges and prosecutors faced uncertainty about whom it applies to and how convicted sex offenders should be removed from the public registry in certain situations. Multiple attorneys have continued pushing those issues in other pending and new cases at both the state and federal levels, and the state of that area of law remains unclear.

The Indiana Public Defender Council identified several cases in the past year that have created uncertainty for public defenders statewide, some resulting from SCOTUS opinions that aren’t clear as far as trickling down to the state level, according to attorney Kent Zepick.

One of the current areas of law that’s muddy relates to McCullough v. State, 900 N.E.2d 745, 750 (Ind. 2009), which authorized sentence increases on appellate review but left what Zepick and other criminal defense attorneys say are many questions for current cases. The justices are now being asked to grant transfer in Akard v. State, 923 N.E.2d 202 (Ind.Ct.App. 2010), which specifically involves the criteria for increasing those sentences on appellate review – something not developed in McCullough.

“This case puts lawyers and trial judges in a tough spot,” Zepick said. “Trial courts may feel the need to impose sentences that exceed the prosecutor’s request to avoid reversals for being too lenient. The situation is arguably worse for appellate counsel, who no longer can competently advise a client about whether to appeal a sentence because of the possibility that the Court of Appeals will increase the sentence.”

Attorney Joel Schumm, who works with the state public defender’s office and runs an appellate law clinic at Indiana University School of Law – Indianapolis, agreed that McCullough and Akard have significantly muddied the legal waters. He said this could have a “severe chilling effect” on defendants who could otherwise challenge their sentences on appeal, making it nearly impossible for lawyers to provide competent advice to those considering an appeal and ultimately leading to longer sentences.

All of those criminal areas are constantly evolving as lawmakers change statutes and policy, and the uncertainty also hits the civil side of the legal system.

Smith pointed to a June 25 ruling from the Court of Appeals that she says has created confusion for the business world. That decision is Franklin Electric Company v. Unemployment Insurance Appeals of the Department of Workforce Development, No. 93A02-0911-EX-1121, in which an appellate panel found that corporations can’t simply create subsidiaries internally and declare them separate entities in order to avoid paying higher tax rates under state unemployment compensation law. The decision dealt with how courts can pierce the corporate veil, and Smith said she received calls from many businesses statewide concerned about this ruling’s impact.

“Their message: this is very scary,” she said. “Although the decision is handed down in the context of workforce development, the language is very broad and can be applied to more than those issues. It really does leave the waters very muddy, because that whole analysis of piercing the corporate veil hasn’t been fully developed here in Indiana.”

The Franklin Electric Company case is pending on transfer to the Indiana Supreme Court, and Smith said she hopes the justices take the case to offer more guidance on that front.

Sometimes, you’ll see intermediate appellate judges trying to reconcile conflicting caselaw and various Supreme Court decisions that impact their rulings, Smith and others said. She mentioned a 2009 case where Judge James Kirsch tried to bring together three Supreme Court rulings about cross-motions and deemed denial, but found they were irreconcilable.

Appellate attorney Jon Laramore at Baker & Daniels said it’s most common to see different three-judge panels disagree and issue conflicting opinions. Appellate panels don’t have the authority to overrule earlier rulings from another Court of Appeals panel, Laramore noted, and the state doesn’t have a way to address those internal conflicts as the federal system and other states have done using the en banc procedure.

“I wouldn’t advocate that in Indiana, but it was raised years ago as a possible issue,” he said. “I’m not sure if it would be used enough here to justify creating it.”

Still, even with little guidance and uncertainty in various areas, many of Indiana’s attorneys and judges who rely on appellate caselaw say Indiana generally does better than what they’ve observed in other states.

“Our courts work very hard to make sure their decisions deal with not only the facts before them but also the precedential value for future cases,” Smith said. “Our justices don’t wait as long to get involved, and because of that we have much less uncertainty as a practical matter in Indiana law.”•

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  1. 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)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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