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Monday, February 04, 2013

Ind. Courts - Two Justices Ask, “Why is This a Supreme Court Case?,” at Recent Oral Argument Involving an NFP Decision

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

Appellate Rule 57(H) makes clear that a “grant of transfer is a matter of judicial discretion” and lists a number of “principal considerations” that suggest an issue has broad, state-wide significance. Under Appellate Rule 65(D), a not-for-publication memorandum decision from the Court of Appeals cannot be cited as precedent in any Indiana court, which suggests it will seldom be worthy of transfer. Nevertheless, the Supreme Court granted petitions to transfer in 3.6% of the NFP cases reviewed here.

Some questions during one of the Thursday, January 31st oral arguments suggest the two most senior members of the Court —- Chief Justice Dickson and Justice Rucker —- may be the most skeptical of granting transfer in NFP cases.

The argument was Darrell Lawrence v. State, a case involving the reversal of a Class A misdemeanor conviction for resisting law enforcement in a not-for-publication memorandum decision. Beginning at the 22:45 mark, the justices engaged in the following discussion with the Deputy Attorney General arguing on behalf of the State:

JUSTICE RUCKER: Counsel, this is an unpublished memorandum decision, concerning a misdemeanor, with no precedential value. Why is this a Supreme Court case?

COUNSEL: Well, it’s only considering …uh, the Class A resisting law enforcement misdemeanor because the trial court excluded the Class B felony possession of cocaine in what the State still contends was a lawful stop.

JUSTICE RUCKER: I understand you have a cross-appeal. But that aside for the moment, referring specifically to this A misdemeanor not-for-publication opinion with no precedential value, why is this a Supreme Court case?

COUNSEL: Because even assuming that the trial court ruled correctly, this case presents dangers to law enforcement if defendants feel they can commit new crimes whether they are assaults, whether they are bribery, whether they are ID theft by giving officers the wrong name. It presents a problem in that defendants can then commit new crimes with impunity and not be subject--

CHIEF JUSTICE DICKSON: Now, wait. You’re not responding to Justice Rucker’s question. This is a memorandum decision; it cannot be cited as authority or precedent. Why is this a threat to the State?

COUNSEL: It is a threat to the State because, even though it is memorandum, it, it sanctions what Lawrence did here by committing the assault against the police officer.

JUSTICE RUCKER: But it has no broader application. He served his time. He was sentenced to a year. He served his time. I mean it has no broader application that’s why to get to Chief Justice Dickson’s question, why is this a threat to the State?

COUNSEL: It’s a threat to the State because of, well, it’s a threat to police officers, to Lawrence here, because we have a person here whose cocaine was excluded. Umm, he was facing a Class B felony cocaine conviction, if this Court were to adopt the State’s position, that, that would send a message to the trial courts as well as to defendants that that was improper.


Not all NFP cases are created equal. As discussed here, the Court recently granted petitions to transfer filed by the State in two sentencing cases. Those opinions made a real difference; defendants must now serve more time in prison than they would have if the Court of Appeals’ opinions were the last word. In Lawrence, though, the Defendant had already served his sentence, and a grant of transfer would at most preserve an A misdemeanor conviction.

When a criminal defendant is seeking transfer, the stakes are arguably always significant. Regardless of a period of incarceration, a 2011 dissenting opinion from Justice Rucker aptly notes that some misdemeanor convictions “carry devastating collateral consequences ranging from deportation, to eviction from public housing, to barriers in employment.”

Moreover, in civil cases, the consequences of an unpublished opinion may be every bit as life-altering for the litigants, such as recent cases involving grandparent visitation rights or parenting time issues.

In other cases, such as the honest sales disclosure case being argued on February 14, the NFP decision seems to have established, modified, or clarified a rule of law, suggesting it should have been published under Rule 65(A).

In sum, although Mr. Lawrence’s attorney made a strong argument for the Court to vacate its grant of transfer of the NFP decision, as of this post the grant of transfer stands. At least three of the justices appear to believe that even a non-precedential decision involving a misdemeanor sentence that has been served is worthy of Supreme Court review. Therefore, appellate lawyers drafting petitions to transfer on any range of issues in the future can remain hopeful that their petitions, too, may have a shot at transfer.

Posted by Marcia Oddi on February 4, 2013 08:45 AM
Posted to Indiana Courts | Schumm - Commentary