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Indiana Supreme Court review analyzes trends, voting patterns

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Every summer, an attorney-authored review analyzes and highlights the Indiana Supreme Court’s activity during the past year.

But only rarely does that report come at a time when the state’s highest court is seeing change, resulting in what could be a re-examination of how attorneys advise their clients and reflect on the court’s activity for their practices.

History is in the making, based not only on an annual review of the court’s activity for 2009 but what has transpired in recent months. Justice Theodore Boehm announced in May his plans to retire in September, meaning that this report analyzes his final full year with the court and symbolizes what his departure might mean for the entire state’s legal community.

Rucker ShepardIndianapolis attorneys P. Jason Stephenson and Mark Crandley, who are partners at Barnes & Thornburg, have compiled the report for the past six years. Associates Jeanine Kerridge and Jeff Peabody assisted with the review, which is the 19th time the report’s been compiled since Indianapolis attorney Kevin Betz started it in 1991.

The 2009 annual review shows some new surprises along with continued old trends.

Overall workload

This year brought little change in the overall docket for the Indiana Supreme Court, Stephenson and Crandley found. Like the year before, 2009 saw a drop in the number of transfer requests after what had been steady growth in past years. That number dropped to 795 from the 858 in 2008, proving that it wasn’t a fluke and the justices were indeed receiving fewer requests from attorneys. As a result, the court granted only 8.4 percent of the cases rather than the 11 percent in 2008, but more than in the years before that.

As with last year, Stephenson and Crandley wondered if the economy played any part in the decrease in cases being brought before the court.

“Given the decline in petitions for transfer, it bears watching whether that change continues to affect the percentage of cases in which the Court grants transfer,” the report states.

Still, despite that drop, the number of rulings from justices stayed pretty much the same – at 97 opinions in 2009 versus 96 a year before. Stephenson and Crandley expect the court will likely hand down about 100 opinions in a given year, which is interestingly more than the U.S. Supreme Court, which hands down fewer than 80 per year despite having four more justices and additional resources.

But significantly, the court reversed in only 70.8 percent of its civil cases, which constituted 60 percent of its caseload, and 67.4 percent in all cases. That’s a remarkable drop from the past years when the court reversed in a higher majority of cases, according to the report.

“That is the most surprising change this year,” Stephenson said. “Civil cases are nearly all discretionary transfers, so there is an expectation that a grant of transfer means that some part of the appealed decision will be reversed. It is true that the number of civil cases means that a few opinions can result in a significant swing, but this is still a significant departure. I have always told clients that acceptance of transfer virtually assures a change to the appealed order, but this statistic will cause me to be more cautious in commenting on the impact of a grant of transfer. If the trend is also apparent (for 2010), attorneys will need to be much more cautious about whether the implications of a grant of transfer mean an order will be reversed in some detail.”

As far as the justices’ productivity, Justice Boehm authored the most opinions at 23, which amounted to 24 percent of all the opinions and included four concurrences and the second-most dissents at eight.
 

INDIANA LAWYER EXTRA
For a closer look at the judicial statistics, click here.

Whether that amount of work had any connection with Justice Boehm’s retirement is not something that Stephenson or Crandley addressed in their report, though, but it certainly plays into the overall impact of what happened last year.

“Only a law journal article of far broader scope could begin to evaluate Justice Boehm’s substantive contribution to the Court and the development of Indiana law,” the report says. “His scholarly opinions impacted Indiana law on an incredible breadth of topics with clarity, insight, and flashes of an underappreciated wit uncommon in judicial opinions.”

One aspect of his legacy that can’t be ignored is the sheer volume of work he produces, Stephenson and Crandley said. He has authored the most or second most opinions of any justice in the each of the past five years, and at the same time he’s handed down about a quarter of all the opinions.

“Although it is easy to focus on his artful opinions and the quality of his analysis, Justice Boehm’s prodigious body of work certainly has contributed to his legacy on the Court,” the report says.

Voting alignments, lack of unity mostly unchanged

The percentage of unanimous opinions continued to wane, with 63.4 percent having total agreement. That’s up slightly from the year before, which was the lowest amount of agreement since 2003 when they only agreed 61 percent of the time.

Split decisions dropped to 19 percent after a spike the year before in 2008, but the percentage is still higher than in prior years. For the first time in more than five years the justices issued more criminal case dissents than civil.

The attorneys believe those numbers indicate either that the justices are less likely to agree in those criminal or more complicated cases that come before them, or that the justices are understandably more inclined to use their limited time and resources to flesh out written dissenting opinions than they would be for opinions in which they at least concur in result. 

With voting trends, the justices don’t line up ideologically like other jurisdictions’ Supreme Court, the attorneys wrote.

Chief Justice Shepard continues to be a critical swing vote on civil cases, Stephenson and Crandley found. The report found consistent alignment on those types between him and Justices Boehm and Frank Sullivan, with 86.4 percent and 81.4 percent respectively. Justices Robert Rucker and Brent Dickson were the second most aligned last year at 85 percent, losing only the chief justice’s alignment to become the majority.

Overall, Chief Justice Shepard and Justice Sullivan continued a trend of being the only pair of justices who agreed in more than 80 percent of all cases. The lowest level of agreement came between Justices Sullivan and Rucker, with 75 percent on all cases.

A changing, uncertain future

Combining those voting patterns with the dissent activity, Stephenson and Crandley point out that more historical trends and changes could be coming to the court for the future years.

For example, Justice Rucker’s trend of being the most noticeable dissenter could be catapulting him to the ranks of being dubbed a “modern Great Dissenter” that the state court typically hasn’t seen. He authored 12 dissents last year, the most of any justice, and that exceeded the number of majority opinions that he drafted – happening only once in the past decade he’s been on the bench when he did it in 2003. By contrast, every other justice wrote more than double the number of majority opinions than their dissents last year.

With Justice Boehm’s departure, that dissenting voice of Justice Rucker takes on new significance and could impact how the court decides in the future, Stephenson said.

“While it is outside the scope of this article to address the merits of his dissenting opinions and their impacts on the development of Indiana law, the sheer persistence of Justice Rucker as a dissenting voice on the court has some practical consequences,” the report says, noting that his dissents can impact everything from how many opinions the justices’ author to the voting alignments and how a case turns out.

The new justice will likely frame how significant Justice Rucker’s role as a dissenter becomes and could make him the swing vote, Stephenson said.

Overall, the report authors say that predicting 2010 is especially difficult this year with Justice Boehm stepping down.

“Writing this article in prior years has demonstrated to me the consistency with this court, and that continues,” he said. “But the differing views on legal issues manifest in growing dissents and split opinions means that Justice Boehm’s replacement could have a significant impact on the court.  Will the new justice fit in with the traditional majority bloc of Chief Justice Shepard and Justice Sullivan or will we see new voting blocs?  Only next year’s statistics will tell make clear whether a major shift in the court is upon us.”•

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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