Tuesday, January 29, 2013
Ind. Courts - "Transfer Statistics From the Chief Justice Dickson-Led Indiana Supreme Court"
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
This post from July 9 and this November 7 post analyzed transfer statistics in civil and criminal cases broken down by published or NFP status. The following table does the same for transfer dispositions from Justice Rush’s November 7 appointment to the Court through the end of the year.
|FP cases||NFP cases||FP & NFP|
|CIVIL||3/14 (21.4%)||1/19 (5.3%)||4/33 (12.1%)|
|CRIMINAL||3/19 (15.8%)||3/64 (4.7%)||6/83 (7.2%)|
|ALL CASES||6/33 (18.2%)||4/83 (4.8%)||10/116 (8.6%)|
Because of the short time period and relatively few cases, any conclusions about the “new” Indiana Supreme Court that include Justice Rush must be tempered. The categorical numbers are fairly consistent with earlier periods: transfer grants were more likely in civil (12.1%) than criminal (7.2%) cases, and the overall grant rate (8.6%) was fairly close to recent historic averages.
The odds for a grant of transfer from an NFP opinion, though, were considerably higher (4.8%) in the final two months of the year than in the August to November 1 period when transfer was granted in only 1.8% of NFP cases, provoking this post titled “A Grant of Transfer is Nine Times More Likely From a Published Court of Appeals’ Opinion.”
Perhaps most surprising, though, are the NFP cases in which transfer was granted. Two of the three criminal cases were petitions from the State in which the Court of Appeals had reduced a sentence. The Supreme Court vacated the reduction in Kimbrough because the defendant had not raised an Appellate Rule 7(B) challenge for a reduced sentence but simply alleged the trial court abused its discretion in its sentencing statement. And in Kucholick 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. Oral argument was not heard in either case.
Oral argument is scheduled in March in the other NFP criminal case, which is from a defendant’s petition and involves whether Indiana Code section 35-50-2-8(b)(3) limits application of the general habitual offender rule when the instant offense is a “drug offense.” The NFP civil case involves honest home sale disclosures, which generated some media coverage, and will be argued next month.
Although Justice Rush has not yet issued an opinion or written a separate concurring or dissenting opinion this early in her tenure, her votes to grant transfer in cases in which transfer was denied suggests she is taking a hard look at both FP and NFP opinions and is more likely than her colleagues to grant transfer. Of those divided cases in which transfer was denied in 2012, Justice Rush voted to grant transfer primarily in FP cases: Palilonis and Gracia, both FP criminal, and Peniel Group and Houser, both FP civil cases. The exception was Tice, an NFP criminal opinion where she and Justice David voted to grant transfer. In the early weeks of this year, however, she had voted to grant in three other NFP criminal cases (Tompkins, Lopez, and App) as well as two FP criminal cases (R.W. and Semenick).
Finally, combining all three time periods yields the following statistics for the Chief Dickson-led Indiana Supreme Court.
|FP cases||NFP cases||FP & NFP|
|CIVIL||22/111 (19.8%)||3/92 (3.3%)||25/203 (12.3%)|
|CRIMINAL||13/99 (13.1%)||11/292 (3.8%)||24/391 (6.1%)|
|ALL CASES||35/210 (16.7%)||14/384 (3.6%)||49/594 (8.24%)|
*This data is slightly different from the aggregate of the tables from the three separate time periods because it was updated to include the recent order vacating transfer as improvidently granted in Ohio Farmer’s Insurance v. Indiana Drywall & Acoustics, Inc. from yesterday.