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Friday, March 04, 2011
Ind. Decisions - More on "COA rules against judge's decision on testimony in child molesting case"
With respect to the ILB entry this morning on the COA decision last month in the case of State of Indiana v. Andy J. Velasquez, II, which quoted Laura Lane's good story from the Bloomington H-T, a reader has sent this note:
Interesting. I have been licensed since 1988 and did not know that such appeals could be taken. It would seem to be black letter law that there is not case or controversy and the court admits the matter is moot.The ILB has asked IU-Indy Law Prof Joel Schumm if he could provide some analysis.
Apparently the court allows the legislature to expand its jurisdiction beyond what most believe to be a basic jurisdictional threshold.
Schumm's answer: Mosley v. State (J. Boehm opinion 2009) includes this spot-on paragraph:It is true that moot cases are ordinarily dismissed. Hill v. State, 592 N.E.2d 1229, 1230 (Ind. 1992) ("We do not provide advisory opinions."); State ex rel. Goldsmith v. Super. Court of Marion County, 463 N.E.2d 273, 275 (Ind. 1984) (same). But that is not always the case. The jurisdiction of federal courts is limited by Article III of the federal constitution to "cases and controversies," and that language has long been taken to prohibit advisory opinions. See U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446, 113 S. Ct. 2173, 124 L. Ed. 2d 402 (1993); Flast v. Cohen, 392 U.S. 83, 96-97, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968); Muskrat v. United States, 219 U.S. 346, 361, 31 S. Ct. 250, 55 L. Ed. 246, 46 Ct. Cl. 656 (1911); Hayburn's Case, 2 U.S. 409, 409, 1 L. Ed. 436, 2 Dall. 409 (1792). The Indiana Constitution has no comparable limitation on "the judicial power of the State" conferred on the courts by article 7, section 1 of the Indiana Constitution. This Court can, and does, issue decisions which are, for all practical purposes, "advisory" opinions. Ind. Dep't of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 336-37 (Ind. 1994). Indeed, on occasion we have issued opinions with no case before us. See, e.g., In re Judicial Interpretation of 1975 Senate Enrolled Act No. 441, 263 Ind. 350, 350-53, 332 N.E.2d 97, 97-99 (1975) (deciding, sua sponte, that legislation setting judicial examination standards and giving lay judges limited criminal jurisdiction was unconstitutional).Schumm continues: The legislature has created a mechanism for prosecutors to challenge unfavorable rulings that result in acquittals. Double jeopardy prevents a retrial, but the guidance could be useful in the future (especially if a judge is ruling on the same issue in future cases). I'm sure the court got very good briefs from the lawyers in this case (Joby Jerrells and Tom Schornhorst.)
Unfortunately, sometimes no one files an appellee's brief. If someone is acquitted and can't be retried, why pay a lawyer to defend an appeal that makes no difference to the individual? With briefs from just one side, some less-than-ideal law can be made.