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.
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.
“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).
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.”•