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Monday, January 28, 2013
Ind. Courts - A Spike in Supreme Court Oral Arguments on Whether to Grant Transfer (But Only in Criminal Cases)
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
In recent months the Court’s oral argument schedule seems especially full, usually with three arguments scheduled each Thursday. The increase is explained in large part by a spike in oral arguments in criminal cases in which the Court has not yet decided whether to grant transfer.
For those who do criminal appellate work, the odds of appearing before the Indiana Supreme Court for oral argument have increased considerably in recent months. During the three-year period from July 1, 2008 to June 30, 2011 — the most recent period addressed in the Court’s annual reports - the Court heard oral argument in a total of only seven criminal cases in which transfer is pending.
In contrast, in just a four-month period, from December 2012 through March 2013, the Court heard or will hear oral argument in eight criminal cases in which a petition to transfer is pending:
- Hartman (12/7): No decision yet on Defendant’s petition to transfer
- Palilonis (12/20): Defendant’s petition denied 3-2, with CJ Dickson and Justice Rush voting to grant
- McWhorter (1/3): State’s petition granted
- K.W. (1/10): State’s petition granted
- McCullough (2/7)
- Peters (2/7)
- Gulzar (3/14)
- Adams (3/28)
Transfer pending cases are — or at least have been — a small part of the Court’s oral argument docket. The Indiana Supreme Court generally discusses petitions to transfer in its weekly conference, denies transfer by order in about 90% of cases, issues an order granting transfer in just under 10% of cases , and schedules oral argument in the vast majority of those granted cases.* (A few seemingly straightforward cases are decided without oral argument, such as the recent per curiam opinions in Iltzsch and Kucholick, and Justice Rucker’s opinion in Kimbrough.)
Scheduling cases for oral argument before deciding whether to grant transfer offers some distinct advantages. First, the additional time and scrutiny from oral argument on the front end will likely reduce the number of cases requiring a post-argument order finding that transfer was improvidently granted.
Second, by waiting to grant transfer, Court of Appeals’ precedent of broad state-wide impact can remain intact. In Joey Jennings v. State, the most important misdemeanor sentencing case in memory, I included the following in an amicus brief filed on behalf of the Marion County Public Defender Agency:
II. Transfer is more appropriately addressed after hearing oral argument and in conjunction with an opinion on the merits.There, the Court scheduled the case for oral argument without granting transfer but then promptly granted transfer after the argument, suggesting the issue will not end well for defendants.
Although trial courts are not uniformly following the Court of Appeals’ opinion in Jennings, many have changed their practices to conform. A grant of transfer will likely lead most, if not all, to return immediately to the pre-Jennings approach, even though the ultimate resolution of the issue will not be known until an opinion is issued by this Court.
Concerns for judicial economy and continuity of precedent counsel against an immediate grant of transfer. Postponing the grant of transfer until oral argument is held or an opinion is issued will minimize the inconsistency of courts flipping back and forth between approaches and mitigate the number of appeals pursued until the issue is ultimately resolved.
In short, the increased number of arguments in transfer pending cases strikes me as a positive trend. The stark contrast between arguments in criminal and civil cases, however, remains a bit of a surprise and mystery.
*Indiana Supreme Court practice differs from U.S. Supreme Court practice. Although both courts consider petitions for discretionary review at a weekly conference, the similarity ends there. When the U.S. Supreme Court grants certiorari, parties are required to file briefs on the merits in the intervening months before oral argument is held. In contrast, no additional merits briefing is sought or permitted by the Indiana Supreme Court. Moreover, a grant of transfer immediately and automatically vacates a Court of Appeals’ opinion under Appellate Rule 58(A), and thus the timing of the grant is more significant than the timing of a certiorari grant. Transfer is granted after the conference discussion in most cases, although grants may also occur after oral argument in cases like those discussed above or simultaneously with the issuance of an opinion, likely where the justices were initially divided about whether to take the case or how to resolve it.