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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

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  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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