« Courts - Kentucky Courthouses to close Tuesday for furlough | Main | Ind. Decisions - Court of Appeals issues 5 today (and 5 NFP) »

Friday, August 31, 2012

Ind. Courts - "While We Wait: Some Thoughts on the Changing Indiana Supreme Court"

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

The three finalists for the vacancy created by Justice Sullivan’s departure have or soon will be interviewed by the Governor’s staff and the Governor. Although conceivably an appointment could be announced in a matter of days, a few weeks is more likely based on the timing of other recent appointments.
In the interim, some have wondered whether the Court will issue any opinions. Nothing prevents the Court from issuing four-justice opinions while it waits for its newest member. This did not happen in the short period between Chief Justice Shepard’s March 23, 2012, departure and Justice Massa’s April 2 arrival. Rather, the Court did not issue any opinions until May 31.

After Justice Boehm’s September 30, 2010, departure, however, the Court issued some opinions that included his name on October 5, followed by a four-justice unanimous opinion on October 13. Justice David joined the Court on October 18, and the Court’s first opinion (excluding a disciplinary matter) came on December 8.

Once a new justice joins the Court, one would expect some delay while he (or maybe she this time around) watches the oral argument, reviews the briefs, and decides whether to join a majority or possibly a separate opinion.

Voting Alignments on the Dickson-Sullivan-Rucker-David-Massa Court

So, while we wait for a new justice, a review of the voting alignments of the four current justices seems timely. A recent post discussed opinions issued in criminal cases in the four-month period between the appointment of Justice Massa and retirement of Justice Sullivan. The center of the Court in those cases was Chief Justice Dickson, who was in the majority in all 19 cases, and Justice David, who was in the majority in 18 of the cases. Justice Rucker was in the majority in 16; Justice Massa was in the majority in 14. All three of Justice Rucker’s dissenting votes were for the defendant while all five of Justice Massa’s dissenting votes were for the State.

But what about the 11 civil and tax opinions issued during the same period? Although voting patterns in criminal cases are easy to categorize, civil cases present some challenges. There is seldom an individual defendant against the State. Plaintiff versus defendant may mean something in cases where a usually disadvantaged plaintiff faces a more powerful defendant, but in many other cases the plaintiff/defendant distinction means very little. That said, here is the breakdown of voting patterns in civil and tax opinions:

Unanimity at 50%, and the New Center

Therefore, of the thirty opinions reviewed above and in the previous post, exactly half have been unanimous. Of the fifteen non-unanimous opinions, Chief Justice Dickson has been in the majority in 87% (13/15) of cases, which is topped only by Justice David who was in the majority in 93% (14/15) of non-unanimous opinions. Of the justices who remain, Justice Rucker was in the majority in 60% (9/15), while Justice Massa was in the majority in 47% (7/15) of the non-unanimous opinions.

Some suggest the center is a good place for the Chief Justice, while others feel differently, as highlighted by the reaction to the recent Affordable Care Act case from the U.S. Supreme Court. Some believe that Justice David is the most likely member of the current Court to become Chief Justice when Chief Justice Dickson retires, and his recent votes certainly place him firmly in the center of the current Court.

An Appreciation for the Center and Precedent

A couple of the opinions are especially noteworthy for demonstrating the Chief Justice’s adherence to precedent rather than moving the Court in a new direction. In reducing a sentence from 20 to 12 years in Walker v. State, Chief Justice Dickson and Justice David could have easily voted to overrule Abbott, a 3-2 opinion in which they had dissented just weeks earlier, but instead adhered to and applied that precedent. Chief Justice Dickson’s concurrence in Dye v. State emphasized deference both to the General Assembly and the Court’s precedent: “notwithstanding Justice Massa's informative and persuasive dissent, I prefer to adhere to our existing controlling precedent of Mills v. State, 868 N.E.2d 446 (Ind. 2007), to which the Legislature has not responded with any contrary explicit legislative direction.”

In politics in recent years, the center is often shunned. The Indiana Supreme Court has been a remarkably apolitical body that issues a large percentage of unanimous decisions. Although unanimity appears lower in the period surveyed, it is too early to tell what the future holds as Governor Daniels prepares to appoint the third new justice in less than two years.

Posted by Marcia Oddi on August 31, 2012 09:55 AM
Posted to Indiana Courts | Vacancy #2 on Supreme Court 2012