Friday, October 11, 2013
Ind. Courts - Transfer Statistics for the Past Quarter: Transfer Ten Times More Likely in FP (than NFP) Cases
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
As has become a tradition for more than a year now, the end of a quarter is an apt time to reflect on the Indiana Supreme Court’s transfer statistics and offer some broader perspective on its docket and any discernable trends.
|FP cases||NFP cases||FP & NFP|
|CIVIL||9/25 (36%)||2/34 (5.9%)||11/59 (18.6%)|
|CRIMINAL||8/24 (33%)||2/85 (2.4%)||10/109 (9.2%)|
|ALL CASES||17/49 (34.7%)||4/119 (3.4%)||21/168 (12.5%)|
First, the almost 35% grant rate in FP cases is nearly twice the usual rate, which generally hovers in the teens. Imagine having a better than one in three chance of something; attorneys who advise clients of these odds will likely be told to pursue transfer in most FP cases.
Next, those seeking transfer from an NFP opinion—especially in a criminal case—faced especially long odds this quarter. Overall a grant of transfer was ten times more likely from a FP decision than an NFP. FP civil litigants were six times more likely to secure transfer than those whose cases were decided in an NFP decision. The disparity in criminal cases was fourteen times. Although the State was one for two in seeking transfer from an NFP opinion, criminal defendants seeking a grant of transfer from an NFP decision were 1 for 83—a 1.2% chance of transfer compared to 21% (4/19) in FP cases in which a criminal defendant petitioned for transfer. The Court of Appeals may therefore expect even more motions to publish in NFP cases. Unfortunately, as previously discussed here, the court does not report statistics on these motions.
Finally, the overall grant rate of 12.5% is more than a third higher than the historic average near 9%. After a fiscal year in which the Court’s opinion output was a bit lower than usual, the Court appears eager early in the new fiscal year to take cases.
The Attorney General’s Batting Average in Criminal Cases: .714
The Indiana Supreme Court reviewed seven petitions to transfer filed by the State in criminal cases, granting five and denying two. The granted petitions included:
- Chambers v. State (NFP) (a case in which the court reinstated the trial court’s sentence after a reduction in a Court of Appeals’ opinion, a trend discussed at length in posts this July)
- Robinson v. State (reasonable suspicion to stop a driver who twice touched the fog line)
- Meehan v. State (a case in which the Court of Appeals concluded “there was no evidence that would support an inference that Meehan’s DNA was found on the glove because he handled it during the burglary, as opposed to some other time”) [Disclosure note: The Appellate Clinic is representing Mr. Meehan on transfer.]
- G.H. v. State (where the Court of Appeals concluded the “State failed to prove that G.H. had a specific intent to further a gang’s criminal goals, which is necessary to sustain an adjudication for criminal gang activity”)
- State v. I.T. (a case in which the Court of Appeals concluded “sua sponte that the State is without authority to appeal a juvenile court’s order withdrawing its approval of the filing of a delinquency petition”)
The NFP Transfer Grants
Beyond Chambers, which is discussed above, the other NFP criminal case in which transfer was granted was Bond v. State, which included a powerful dissent from Judge Kirsch: "Yet each time courts allow such conduct, they implicitly sanction it and encourage the next police officer in the next interrogation to go a bit further, to be more offensive, more racist and more deceptive." It is surprising the opinion was issued NFP when it was a discretionary interlocutory appeal, the possible grounds for which include that it involved “a substantial question of law,” and was decided after oral argument at the Court of Appeals. The Appellant even filed a motion to publish, which was denied.
The two civil cases were a termination of parental rights case and a Child in Need of Services (CHINS) case, which are discussed at the end of this post.
Variations Among Justices
As discussed three months ago, 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 past quarter—and consistent with prior quarters—Justices David and Rush were the most likely to vote to grant transfer, although their rate was down considerably from 12 each the past quarter.
|Chief Justice Dickson||4|
Oral Argument Avalanche Coming Soon?
As discussed in this June 13 post, the Indiana Supreme Court added twenty cases to its oral argument calendar in a single day. This appears to be a change from prior practice of scheduling arguments shortly after a grant of transfer (or a vote at conference to schedule oral argument) throughout the year. Although the court generally schedules oral argument in the vast majority of cases in which transfer was granted, only six of the 21 grants during the past quarter have been scheduled for oral argument.
The three cases in which transfer was granted on July 11 were argued in September or early October. Somewhat surprisingly, these cases secured much earlier argument dates than the cases granted transfer weeks earlier. For example, transfer was granted May 16 in Bleeke v. State, but the case is scheduled for oral argument December 5—the last day on which arguments are currently scheduled.
The most notable exception to delay in scheduling arguments occurred in cases involving children, as the Court scheduled oral argument for October in three cases, including:
- October 10 and October 24 arguments in two separate termination of parental rights case in which transfer was granted August 22
- An October 31 argument in a Child in Need of Services (CHINS) case in which transfer was granted September 6.
*This table does not include the nine cases that appeared on the transfer tables but did not involve a Court of Appeals’ opinion. Three cases were 56(A) (emergency transfer) petitions, which seek to bypass the Court of Appeals and go directly to the Indiana Supreme Court. The other six primarily involved appeals from the granting of a motion to dismiss an appeal. For example, transfer was granted last quarter then vacated after oral argument in September in the high profile case involving the Indianapolis Star’s refusal to reveal the identity of an anonymous commenter on its website.
Posted by Marcia Oddi on October 11, 2013 03:40 PM
Posted to Schumm - Commentary