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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. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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