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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. 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)

  4. "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.

  5. 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.

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