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Wednesday, November 07, 2012

Ind. Courts - A Grant of Transfer is Nine Times More Likely from A Published Court of Appeals’ Opinion

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

One of the Court’s most important functions is deciding which of the approximately 900 Court of Appeals’ cases that come before it each year are worthy of further review. As Justice Rush joins the Court today, its third new member in two years, it is worth considering whether the changing Court membership could include a change in approach to transfer petitions.

As noted in this July 9, 2012 post, 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). The new membership of the Court may mean a shift in that view. During the first three months following the departure of Chief Justice Shepard and appointment of Justice Massa, the Court granted transfer in 21.1% of FP civil cases, 14% of FP criminal cases, 2.4% of NFP civil cases, and 6.2% of NFP criminal cases.

The table below updates that information with data from the beginning of July to November 1, 2012

Indiana Supreme Court Transfer Grants:
July 1-November 1 2012*
  FP Cases NFP Cases FP & NFP
CIVIL 20.7% (12/58) 3.1% (1/32) 14.4% (13/90)
CRIMINAL 10.8% (4/37) 1.5% (2/131) 3.6% (6/168)
ALL CASES 16.8% (16/95) 1.8% (3/163) 7.4% (19/258)

The overall 7.4% grant rate was lower than the 9.6% rate from the previous three months and the three-year average. The disparity between FP and NFP opinions was especially stark. A grant of transfer was nine times more likely from a FP opinion than an NFP opinion.

Within the categories, odds were especially long for NFP criminal cases at 1.5%, which is four times lower than the 6.2% rate from the previous three months. The State sought transfer in one of those cases. The other was a post-conviction case in which the defendant sought transfer. The sole civil NFP transfer case involved grandparent visitation rights.
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*Transfer dispositions from Court of Appeals’ cases in which an appeal was dismissed or otherwise resolved by order have been omitted from this analysis. Tax Court cases were also been omitted. This published case was erroneously listed on the transfer list as NFP. Although initially issued as NFP, a motion to publish was granted before transfer proceedings.

Posted by Marcia Oddi on November 7, 2012 10:18 AM
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions