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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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