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Looking back on rulings

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Looking in the rearview mirror on judicial precedent is a task that every judge on every court faces.

A decision whether to respect past decisions or refine and even overrule them isn’t easy for judges, and that means it’s a tough task for an appellate attorney to persuade a jurist that this is the best option. But it happens, though Indiana appellate attorneys say it’s not common in this state to see the highest court completely reverse precedent.

One recent case illustrates that the state’s highest court can disagree about when to overrule precedent and how they evaluate past rulings, with all but one justice finding no reason to change course without legislative direction.

In the June 28 ruling in Brenda Moore v. State, No. 49S04-1101-CR-24, Justice Robert Rucker disagreed with his four colleagues and would have revisited a decision made in 1966. The majority decided that Brenda Moore’s public intoxication conviction should stand, declining to reverse on public policy grounds and holding that it didn’t violate any constitutional right.

The case out of Marion Superior Court involved Moore’s challenge to her Class B misdemeanor conviction for public intoxication. A friend asked her for a ride, but since Moore had been drinking, she let the friend drive her car and she rode in the passenger seat. The two were pulled over for a nonworking license plate light. The friend didn’t have a valid license, and Moore admitted she couldn’t drive the car because she had consumed alcohol.

The three-judge Court of Appeals panel was split, with the majority reversing and using Miles v. State, 247 Ind. 423, 425 216 N.E.2d 841, 849 (1966), to support its decision. The majority noted the purpose of the public intoxication statute is to prevent intoxicated people from threatening the safety of others, and under the circumstances of this case Moore wasn’t intoxicated in a public place under the meaning of Indiana Code 7.1-5-1-3. Judge Nancy Vaidik dissented, saying that although she thinks this outcome goes against public policy, it is up to the Legislature to revise the statute. Until that happens, her vote is that the 1966 precedent should stand.

Taking the case, the high court majority didn’t address the public safety issue, and instead focused on two issues: that the conviction violates public policy and her right to consume alcohol. Moore argued that her conviction “violates the spirit of the public intoxication statute, and the policy behind its enactment” because she didn’t cause any harm or annoyance and didn’t drink and drive. She believed a policy should be enacted to encourage intoxicated people to find rides without fear of being prosecuted for a crime. The majority found that Moore was subject to the public intoxication statute because of her conduct after consumption, not due to what she drank, and that her accountability under the statute doesn’t violate her personal liberty rights under the Indiana Constitution.

Justice Brent Dickson wrote for the majority, rejecting Moore’s argument that public policy favors people being able to use designated drivers when they are too drunk to drive. That should be left to the Legislature, the majority wrote.

But Justice Rucker would revisit Miles, which held that a person parked along a highway was in a public place for purposes of the public intoxication statute. He would have declared that it was wrongly decided, and looked to an even older precedent to support his decision. Justice Rucker cited State v. Sevier, 20 N.E. 245 (Ind. 1889), in which the justices held that the purpose of the public intoxication statute is to protect the public from the annoyance and deleterious effects that may occur because of the presence of intoxicated people.

“It is difficult to perceive how this purpose is advanced by declaring that the inside of a closed vehicle traveling along a highway is a public place,” Justice Rucker wrote, noting that he believes Moore shouldn’t suffer a criminal penalty for taking the responsible action of allowing a sober friend to drive her car while she was too intoxicated to do so.

Indianapolis attorney and law professor Joel Schumm says wholesale precedent-changing decisions are rare, and typically happen only in situations where the Indiana General Assembly revises the law, the U.S. Supreme Court dictates so, or a specific court rule is revised.

One of the most recent examples is Richard L. Barnes v. State, where the court in May expanded intermediate court precedent to eliminate what the majority of justices described as outdated common law allowing people the right to reasonably resist police entry into one’s home. Other jurisdictions had made similar interpretations on that common law right, and the Indiana justices followed suit despite precedent and a state self-defense statute offering a way to reach a different conclusion.

Schumm recalls only a few criminal cases during the past five years that have resulted in large-scale precedent changes. In Staton v. State in 2007, the court overruled a 1977 case creating a presumption regarding proof of age when it was an element of the offense because the U.S. Supreme Court had since changed precedent. Another from 2007 was Biddinger v. State that overruled a 1985 holding on no right to allocution for a guilty plea, and the justices opted to modernize precedent based on rulings that have been issued since they joined the court. A third 2007 case Schumm points to is Gutermuth v. State, which was decided after a landmark ruling that reshaped sentencing schemes nationally and statewide.
 

smith-maggie-mug Smith

Indianapolis attorney Maggie Smith’s memories of clerking for the Indiana Supreme Court more than a decade ago come to mind when thinking about how often the courts overrule past decisions.

“The justices were very aware of the need to adhere to precedent for the sake of uniformity, reliability, and consistency in the rule of law,” said the Frost Brown Todd partner, who clerked from 1996 to 1998. “But I do not remember them ever being overly reluctant to considering overruling precedent if it was wrongly decided or no longer consistent with today’s legal standards.”

Westlaw shows the Indiana Supreme Court has issued about three dozen decisions since 1997 that expressly overruled existing precedent, according to Smith. While that may be a small number statistically given the court’s overall docket during that period, she says that most attorneys probably wouldn’t think the number was that high.

The Court of Appeals doesn’t have the same rules to follow, as far as respecting its own caselaw. While the panels are bound by the justices’ decisions and more often than not abide by decisions they’ve made on particular legal issues, the three-judge panels are not bound by “horizontal stare decisis” that other panels have established in the past.

Not all precedent-changing is dramatic, though. Some are small revisions, expanding or even contracting caselaw, while others present a more significant change that impacts the entire principle attorneys may be using to argue an appeal.


vranas-tim-mug Vrana

“My impression is that although the Indiana Supreme Court certainly doesn’t overturn precedent every day, they do so on occasion,” Columbus attorney Tim Vrana said. “They may do so because the prior precedent is antiquated, or because the trend among other state high courts is to follow a principle that is the opposite of Indiana precedent, or it may be because the justices have changed and the numbers come out differently.”

While the 7th Circuit Court of Appeals follows the general principles on precedent, Circuit Rule 40(e) states that a panel can overrule a previous 7th Circuit decision “only explicitly and by an opinion circulated to the whole court.”

Indiana isn’t much different than other states on this issue of following precedent, Vrana said.

In Mishawaka, appellate attorney Bob Palmer at May Oberfell & Lorber said he’s handled more than 300 appeals since starting out in 1980 and that courts are extremely reluctant to overturn precedent. He noted that former Indiana Court of Appeals Judge Robert Hoffmann, who Palmer clerked for in the early 1980s, wrote the same paragraph into rulings when he disagreed with precedent and wanted the justices to take a closer look. The Indiana Supreme Court almost 30 years ago adopted a variation of that statement into its ruling on Argylean v. Haviland, 435 N.E.2d 973, 977 (Ind. 1982).


palmer-bob-mug Palmer

The justices wrote, “Although courts should not be slow to respond to changing conditions, changes in the established law are not warranted simply because it is imperfect, and we should not feel compelled to join the ranks of greater numbers when it has not been demonstrated that their way is the better way.”

When precedent is overruled, appellate attorneys say their hope is that courts make it clear what they’re doing – something that isn’t always the case.

“I do see a problem with the practice of a court ‘effectively’ or ‘implicitly’ overruling precedent without identifying that it is being done,” Smith said. “In that instance, a party will have no reason to believe the legal premise in Case A was changed by Case B without having to do an exhaustive search of any case that might relate to the legal principle in Case A. Litigants should be able to rely on a case without worrying that it no longer represents good law because of another case that never cites it directly.”•

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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