« Ind. Gov't. - "Leucadia drops plan for Mississippi plant" | Main | Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP) »

Friday, July 12, 2013

Ind. Courts - Current process for dealing with corrected appellate opinions poses perils

Here are two ILB posts from several years ago that now have added relevance:

Both posts repeat this recommendation:

A second improvement, that I suggested to the Clerk's office several years ago, has to do with corrected opinions. It appears that when an opinion is corrected for typos, etc. a new version is posted in place of the old with nothing said. So different people may be reading different versions, depending on when they accessed the opinion. Why not append a correction sheet to the revised version?
On July 2nd of this year, an unidentified Court of Appeals panel issued an opinion, designated "Panel Per Curiam," in the case of Frederick L. King v. State of Indiana. The ILB commented at the time that "the ILB has never seen this before. The panel is not identified, either in the opinion or in the docket." (Subsequently one other panel per curiam was located, from 2010.) A reader commented: "I think every litigant is entitled to a real opinion with three named judges. Two classes of opinions, even for cases that appear to lack merit, is a bad precedent."

A July 3 update to the July 2 ILB post notes:

The names of the panel members have now been added to King ("Najam, J., Bailey, J., and Barnes, J."), along with a footnote that begins: "In per curiam opinions, judges serving on the panel are listed in order of seniority."
Here is the originally issued version of King v. State.

Here is the "updated"" or "corrected" version of King v. State.

Notice that they are both file-stamped Jul 2 2013, 10:43 am. But if you examine the two versions side-by-side, you will see that, in addition to the names of the panel members and the footnote, two new lines of citations have been inserted at the end of the final paragraph:

See Chambers v. State, Cause No. 53S01-1307-CR-459 (Ind. July 2, 2013); Merida v. State, Cause No. 69S01-1301-CR-24 (Ind. May 17, 2013); Lynch v. State, Cause No. 40S05-1301-CR-23 (Ind. May 17, 2013).
(Interesting, Chambers was decided by the Supreme Court on July 2, but file-stamped "2:25 pm.")

The online docket merely adds the names of the panel judges -- and does not note a corrected opinion was issued.

The perils posed by this practice.

If you downloaded or printed out the opinion on July 2, you do not have the corrected version.

If you access or link to King through the Court's website today, you will reach the "corrected" version, with no indication that it reads differently than the version posted at the time of the file-stamp, "Jul 2 2013, 10:43 am".

If you access the decision today through the ILB's earlier post, you will also reach the "corrected" version, because the ILB's link is to the Court's version.

But if you access King through the Indiana Lawyer's July 2nd write-up, as of today you will access the original version, because the IL downloads the opinions each day as they are posted to its own archive.

Moreover, I just found out yesterday that Lexis has the amended version; and that Westlaw has the original (and a wrong note at the top about it being NFP).

Also, I don't know whether the parties were mailed the new opinion.

In short, everyone is not using the same playbook. And the problem is not isolated to this case, it is a problem whenever an opinion is changed after it is filed and posted. Most of the time, we don't know about it. We know in the King case only because the ILB had been looking at it because the panel was unidentified. If a party seeks transfer, it is anyone's guess which opinion the Indiana Supreme Court justice will review.

What to do? At a bare minimum, the changed version should be so identified. A change sheet should be included in the posting so that the changes are easily found.

More should be done if changes go beyond typos, perhaps refiling the opinion. The parties, of course, must be notified. And a general notice system, perhaps similar to the one now used by the Court of Appeals for NFPs changed to FP, might also be employed.

Posted by Marcia Oddi on July 12, 2013 08:40 AM
Posted to Indiana Courts