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Tuesday, July 02, 2013
Indiana Courts - Second Quarter Transfer Statistics and Trends
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
During the just-finished second quarter of 2013, the Indiana Supreme Court was a bit more conservative in granting transfer than it had been in the first quarter when it granted transfer in nearly 12% of cases.
|FP cases||NFP cases||FP & NFP|
|CIVIL||7/39 (17.9%)||4/33 (12.1%)||11/72 (15.2%)|
|CRIMINAL||6/29 (20.7%)||2/103 (1.9%)||8/132 (6.1%)|
|ALL CASES||13/68 (19.1%)||6/136 (4.4%)||19/204 (9.3%)|
The second quarter overall grant rate of 9.3% is more in line with the long-term historic average. But two of the individual categories were anomalous. First, the 23.3% grant rate in published criminal cases is almost 50% higher than the rate in published civil cases. During the last three quarters of 2012, the rate in published civil cases (19.8%) was instead 50% higher than the criminal published rate (13.1%). The most notable outlier, though, is the 12.1% rate in NFP civil cases, which is nearly four times the 3.3% rate from April to December 2012.
Civil NFP cases
The high percentage of transfer grants in NFP civil cases is explained in large part by the grants in two Evansville cases involving challenges to anti-smoking ordinances, which were surprisingly issued NFP. The other two NFP civil cases were a child custody case (still pending) and a termination of parental rights case that had been dismissed by the Court of Appeals but was reinstated and resolved against the parent by the Indiana Supreme Court.
Criminal NFP cases
The two criminal cases were both petitions filed by the defendant and involve issues of alleged juror misconduct (still pending) and a challenge to a trial court’s sentencing statement that was remanded by the Indiana Supreme Court.
The State’s Batting Average: .833
The State filed six petitions to transfer during the second quarter, all from published Court of Appeals’ opinions. Five of the six were granted.
Four of the cases are pending and include the high profile Castleton Mall shoe camera case and the Muncie principal who conducted a short investigation rather than immediately reporting an alleged rape. A third case involves a trial court’s denial of the State’s motion to commit to a state mental hospital a defendant suffering from Alzheimer’s disease. All three of these were 2-1 Court of Appeals’ opinions.
The fourth case involves challenges to parole conditions (and bears a civil cause number, as explained in the footnote).
The fifth case has already been resolved; the denial of a motion to suppress based on police stopping a vehicle because of its window tinting was affirmed.
The only case in which the State’s petition to transfer was denied was Whitener v. State, where the Court of Appeals denied the State’s cross-appeal as untimely. The vote was 3-2; both the Chief Justice and Justice Massa voted to grant transfer.
The flip side of the State’s impressive batting average is that of criminal defendants, who batted a mere .024—or about a 1 in 42 chance of a transfer grant.
Variation Among Justices
A grant of transfer requires a minimum of three votes, but the order granting transfer does not include a vote line. As lawyers approach oral argument, there is no way to know which three (or more) justices voted to take the case. Questions at oral argument may give a hint, and several times during the past year the justices decided to vacate a grant of transfer after hearing argument.
When transfer is denied, however, the order includes a vote line that notes which, if any, justices voted to grant transfer. During the second quarter—and consistent with prior quarters—Justices David and Rush were the most likely to vote to grant transfer (12 votes each). Justice Rucker had 8; Chief Justice Dickson 7; and Justice Massa was the least likely to vote to grant transfer with 3 votes last quarter.
*Although Bleeke v. State may seem like a criminal case in terms of parties and subject matter (parole conditions), the case bears a PL (civil plenary) cause number and is therefore included in the civil statistics. If the case were instead classified as a criminal case, the civil FP statistic would fall to 15.8% and the criminal FP would be 23.3%.