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Monday, March 24, 2014

Ind. Decisions - This morning's Indiana Supreme Court opinion is not new, and what's wrong with that

This morning I posted the Supreme Court opinion in State of Indiana v. I.T. Because it sounded familiar, I first checked that I had not already posted it on Friday.

I became aware of the opinion because of a tweet this morning by Indiana Courts:

Prof. Schumm has just sent me a note that this was simply a "corrected opinion". A check of the docket at 3/21/14 shows that to be so:

IT HAS COME TO THE COURT'S ATTENTION THAT THE OPINION HANDED DOWN ON MARCH 12, 2014, CONTAINS AN INADVERTANT ADMISSION ON PAGE 1. SPECIFICALLY, ATTORNEY PETER D. TODD OF ELKHART, INDIANA, WAS NOT LISTED ABOVE THE CAPTION AS COUNSEL FOR THE APPELLEE.

THIS INADVERTANT OMISSION WAS CORRECTED IN A REVISED OPINION THAT WAS DELIVERED TO THE CLERK WITH THIS NOTICE. NO OTHER CHANGES WERE MADE TO THE OPINION, AND NEITHER THE CORRECTED OPINION NOR THIS NOTICE ALTER THE DUE DATE FOR A PETITION FOR REHEARING.

THE CLERK IS DIRECTED TO (1) ENTER THIS NOTICE OF CHANGE ON THE CHRONOLOGICAL CASE SUMMARY; (2) SERVE ALL COUNSEL OF RECORD WITH A COPY OF THE CORRECTED OPINION AND THIS NOTICE; (3) MAKE ARRANGEMENTS FOR REMOVING THE ORIGINAL OPINION FROM THE COURT'S WEBSITE AND POSTING THE CORRECTED OPINION IN ITS PLACE; AND (4) SEND A COPY OF THIS NOTICE TO THOMSON/REUTERS, LEXISNEXUS, AND WOLTERS KLUWER.

LORETTA H. RUSH, JUSTICE
(NOTICE REC'D ON 03/21/14 @ 2:08 PM) ENTERED ON 03/21/14 AB

But there is nothing in the opinion filed March 21st to indicate that it is merely a corrected version of the opinion filed March 12th.

Earlier this month, on March 6th, the Supreme Court also issued a corrected opinion, of the March 4th opinion In re Brown. At the time, the ILB wrote:

The Supreme Court has now posted a new version of the March 4th opinion in In re Brown, marked "Corrected on March 5, 2014." However, there is no indication of what is the correction.
Now, a few weeks later, the Supreme Court has issued another corrected opinion, this one with no indication at all that it has been corrected, much less pointing out what the change is. And although the Brown opinion used the same filing date for both versions, I.T. now has two separate filing dates.

On July 12, 2013, the ILB wrote a long post titled "Ind. Courts - Current process for dealing with corrected appellate opinions poses perils." The last part of the post discusses the perils posed by the haphazard way corrections to opinion appear to be dealt with. It concluded:

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.

I would end on that note, except that I recently have come across a post from a blog, Citing Legally, run by Peter W. Martin, the Jane M.G. Foster Professor of Law, Emeritus, at Cornell. Scroll down the post to #4, which discusses the Indiana Court correction process. Some quotes:
The judicial web sites of some jurisdictions are very clear that one shouldn’t count on such post-release revisions being incorporated into the electronic texts they hold. A recent example from Indiana illustrates the problems this can generate.

On October 17, 2012, the Indiana Supreme Court issued an opinion in J.M. v. Review Bd. of Indiana Dept. of Workforce Development. The decision was posted at the web site of Indiana’s judicial branch.

Continue reading the post from Cornell for the somewhat sorry tale, at length.

The ILB also talked about this problem involving the Workforce Development opinions in detail in this Sept. 12, 2013 post in the paragraph that begins "ILB:"

Posted by Marcia Oddi on March 24, 2014 01:00 PM
Posted to Ind. Sup.Ct. Decisions