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Monday, July 09, 2012

Ind. Courts - Long Odds for a Grant of Transfer in Not-For-Publication Civil Cases

This analysis is from Ind. University-Robert H. McKinney School of Law professor Joel Schumm.

The conventional wisdom among Indiana appellate practitioners has long been that it is very unlikely the Indiana Supreme Court will grant transfer in a not-for-publication opinion from the Court of Appeals. Appellate Rule 65(D) makes clear that NFP opinions cannot be cited as precedent in any court, so there is little reason for the Supreme Court to find a compelling reason of state-wide significance worthy of a grant of transfer. See generally App. R. 57(H).

A few years ago as part of a CLE presentation I ran transfer stats for a six-month period and found transfer was granted in only 3% of NFP cases but in 27.1% of FP cases. The reaction of most appellate lawyers at the time was that 3% was better odds than they expected for NFP decisions.

With the retirements of Justice Boehm and Chief Justice Shepard and appointment of Justice David and Justice Massa, I wondered how the NFP/FP distinction is playing out in the newly constituted Indiana Supreme Court. Justice David commented at an IBA Appellate Practice Section CLE last year that he reviews transfer petitions in FP and NFP cases no differently. The following table shows the transfer dispositions broken into civil/criminal and FP/NFP categories during the three month period of April through June of this year.

Indiana Supreme Court Transfer Grants: April-June 2012
  FP cases NFP cases FP & NFP
CIVIL 21.1% (8/38) 2.4% (1/41) 11.4% (9/79)
CRIMINAL 14% (6/43) 6.2% (6/97) 8.6% (12/140)
ALL CASES 17.3% (14/81) 5.1% (7/138) 9.6% (21/219)

It is not surprising that transfer grants are lower overall in criminal cases than in civil cases (8.6% versus 11.4%). Most criminal defendants are represented by appointed counsel and must pursue transfer in cases with a federal constitutional issue to preserve the claim for later federal habeas review.

What is surprising during the past three months, though, is that a criminal defendant seeking transfer from a FP opinion does not have significantly better odds at transfer (14%) than one with an NFP opinion (6.2%). Perhaps most surprising, though, is the long odds of transfer for civil litigants with an NFP opinion (2.4%). The only case in that category was this domestic relations case involving parenting time.

The annual reports of the Indiana Supreme Court do not include statistics on transfer grants by FP/NFP opinions, but they do include overall percentages of transfer grants in which Supreme Court opinions were issued. Comparing statistics from the last three months with data from three recent years suggests the percentage of recent transfer grants in civil cases was a little below the average while the percentage of recent transfer grants in criminal cases was above average.

Transfer Granted and Opinions Issued
  Civil Cases Criminal Cases All Cases
2008-09 13.7% 7.0% 9.5%
2009-10 17.2% 7.6% 10.7%
2010-11 11.3% 7.2% 8.7%

Three months is a short period of time, though, and it remains to be seen if the Court will continue to grant transfer in a significant number of NFP opinions and take a larger percentage of criminal cases than in the past.

Posted by Marcia Oddi on July 9, 2012 03:35 PM
Posted to Indiana Transfer Lists