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Tuesday, January 29, 2013

Ind. Courts - Remarkable Unanimity at the Indiana Supreme: August-December 2012

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

The last five months of 2012, following the July 31 retirement of Justice Sullivan, have been a period of extraordinary unanimity at the Indiana Supreme Court. Of the Court’s nineteen opinions, a whopping 95% (18/19) have been unanimous.* The sole exception was a per curiam opinion in a criminal case where the Court essentially split the difference in reducing a sentence from the one imposed by the trial court but above the reduction ordered by the Court of Appeals. Chief Justice dissented “believing that, while it is correct to grant transfer, the judgment of the trial court should be affirmed.”

The 95% rate stands in stark contrast to the 50% unanimity rate from this August 31 post that summarized vote alignments between the retirements of Chief Justice Shepard and Justice Sullivan. One would expect less unanimity, though, as the Court cleared its docket of long-pending cases upon the retirement of one of its members. In contrast, one would not expect as many divided opinions in the weeks after Justice Rush’s appointment. Uncontroversial cases in which all justices agree with the outcome and reasoning are more likely to be decided quickly. If two or more justices have separate opinions in circulation, however, the case is likely to take longer to decide, and we will surely see some of these in the coming weeks and months. The average rate of unanimity over the past three years has been 66%.

Nevertheless, I wouldn’t be surprised to see a unanimous opinion in two of the Court’s highest profile pending cases. I continue to believe the Court is likely to uphold the constitutionality of the Choice Scholarship (school voucher) program. The legislative fines case seems less clear cut, as the justices expressed serious concerns at oral argument with the notion that courts are powerless to intervene in any and every legislative branch squabble. That argument also included the unusual closing comments from the Chief Justice encouraging the parties to find a compromise. Although the Indiana Supreme Court is certainly deferential to other branches of government, Berry seems in some ways similar to A.B., where the Court put a limit on what would otherwise have been unrestricted and unreviewable power of another branch of government. Although that opinion included two separate concurring opinions debating deeper issues about Single Subject Clause of Article 4, Section 19, the justices were unanimous in placing limits on the DCS’s director’s authority. I suspect they will strive for a unanimous opinion in resolving the legislative fines dispute as well.
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*I consider the Court’s Farmer disciplinary opinion unanimous because Justice David concurred in the result without writing a separate opinion.

Posted by Marcia Oddi on January 29, 2013 09:44 AM
Posted to Indiana Courts