ILNews

Indiana Supreme Court review analyzes trends, voting patterns

Back to TopE-mailPrintBookmark and Share

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.”•

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

ADVERTISEMENT