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Friday, June 14, 2013

Ind. Courts - Are pre-transfer oral arguments becoming the new norm for the Supreme Court?

Of the twenty cases set for oral argument yesterday by the Supreme Court for the upcoming for September to December period, six are cases in which transfer has not yet been granted. In several recent posts, Prof. Joel Schumm has commented on the Court's growing trend of scheduling oral arguments to decide whether to grant transfer, rather than the Court vacating the Court of Appeals opinion and then holding oral argument.

Earlier this week the ILB received at note from a reader who wrote:

The Chief Justice devoted a part of his plenary talk at last week’s Solo & Small Firm Conference on “the New Indiana Supreme Court” to the change in procedure on allowing and vacating grants of transfer from the Court’s previous practices.

I do not have notes of the comments, but I recall him saying that the Supreme Court is intentionally moving away from granting transfer and then entering “improvident granted orders” with reinstatement of the Ct of Appeals opinion, to a system, like days of old, when the court would approve review on the Petition to Transfer, without granting the transfer and vacating the Ct of Appeals opinion, and order briefing and oral argument if appropriate. Then after briefing or hearing the counsel’s arguments, the Court would first decide in conference if transfer should be granted. If it should, it will then decide the case under its standards, on the merits.

The ILB also received a tweet from another attendee, who wrote:
At the ISBA SSFC, C.J. Dickson indicated pre-transfer arguments may be the new norm as it used to be when he took the bench.
Fortunately the ILB was able to ask the Chief Justice directly:
I'm told you said the Court would move to a system such as you have been using somewhat more often recently, where you hold argument on whether or not to grant transfer without first vacating the COA opinion. I'd like to report (accurately) on what you presented to the Conference.
Chief Justice Dickson responded:
Hi Marcia – I didn’t intend to convey the impression that the Court was intentionally adopting any change in procedure. Rather, I was reflecting on aspects in which the “new” court (BD, RDR, SD, MM, and LR) seemed to be differing slightly from the “old” court (RTS, BD, FS, TRB, and RDR).

One of these was the apparent increasing frequency in times where the Court seems to be scheduling oral argument without first granting transfer. Your blog has reported on this already.

This is not an intentional change in practice, however. It was just an example of how the “new” and “old” courts may seem to vary.

My remarks to the Solo & Small Firm Conference were not in the form of a written speech, but rather a partial speech outline that guided my often extemporaneous remarks. Following is the relevant excerpt from my personal notes which guided my remarks.

  • More frequently granting OA without first granting transfer
    This was the standard when I came to the court. We never granted transfer until after OA, and then only when opinion issued.

  • Under the "Old Court," we adopted the default practice of granting transfer before holding OA.

  • With the "New Court," we have begun more frequently to schedule OA without first granting transfer
    -- perhaps out of reluctance to deny transfer unless we were fully informed
    -- perhaps to avoid "improvidently granted" rulings where we realized, after OA, that transfer is not warranted
    -- and also to more fairly inform counsel if we were in doubt whether to grant transfer

ILB: In other words, although some attendees may have perceived a major change, CJ Dickson was merely summarizing the minor shift of the past year. The Court will continue to grant transfer at conference in many cases. But in borderline cases, they will set for argument rather than grant transfer upfront. And even in some cases that would have been denials under the "old" Court, the "new" Court has already and will continue to set argument, to avoid denying transfer without being fully informed.

A concern. As noted at the beginning of this entry, of the twenty cases yesterday set for oral argument for September to December, six (30%) are cases in which transfer has not yet been granted. That means they do not show up on the weekly transfer list, issued a few days after the Court's weekly conference.

As I've written before, it would be a useful change from the public's point of view for the Court to announce in advance what petitions it will consider in its upcoming weekly conference (as does the Supreme Court of the United States), and then promptly post the resultant transfer list that afternoon or the following morning.

As it stands, the list posted every Monday (or Tuesday if Monday is a holiday) reflects grant/deny decisions made at least a few days earlier and omits any mention of decisions to set cases for argument. Presumably the decision to hold argument in cases like Brewington and the other cases that appeared on the Court’s oral argument calendar yesterday were made weeks earlier.

If the Court posted a pre-conference list, the public and press would receive more timely and complete information about the important decisions being considered and made by the justices. And, beyond the granted/denied rulings, the companion post-conference list could also include decisions to set a case for conference or holdover for a future conference.

Posted by Marcia Oddi on June 14, 2013 11:58 AM
Posted to Indiana Courts