« Ind. courts - Appellees file brief in State of Indiana's 7th Circuit appeal | Main | Ind. Decisions - Court of Appeals issues 8 today (and 13 NFP) »

Wednesday, July 30, 2014

Ind. Courts - Second Quarter Indiana Supreme Court Cases: More Unanimity, Fewer Court of Appeals’ Reversals

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

The Indiana Supreme Court issued opinions in 12 civil cases and 17 criminal cases between April 1 and June 30. The two tables below include detailed information about the disposition time, authorship of majority opinions and separate opinions, and whether the Supreme Court reached the same or opposite result as the Court of Appeals and Trial Court.

Indiana Supreme Court Opinions (Criminal Cases): April 1, 2014 - June 30, 2014
  Days from
to Grant
Grant to
Oral Arg.
Oral Arg
to Opinion
Total Time Majority Author Dissent COA Trial Ct.
Thang v. State 26 104 43 173 BD SD/RR R A
Gaddie v. State 37 118 54 209 BD U A R
Berry v. State --- --- --- 233 LR CR-RR R R
Murdock v. State) --- --- --- 46 BD U A A
McIlquham v. State 28 84 71 183 LR U A A
Knapp v. State (LWOP) direct 115 84 199 LR U --- A
Ponce v. State 38 153 140 331 RR U R R
Ryan v. State 31 70 138 239 BD U R A
Fuller v. State --- --- --- 258 RR U R R
Brown v. State --- --- --- 249 RR U R R
State v. Harper --- --- --- 68 BD U R A
Bond v. State 36 147 96 279 SD U R R
Brewington v. State* --- 171 232 403 LR U R A
Meehan v. State 39 147 110 296 SD U R A
Ramirez v. State 15 150 209 374 LR Co-MM A A
Rice v. State (LWOP) direct --- --- 198 MM U --- A
Wilson v. State 31 --- --- 239 SD U R R
Averages 31 126 118 234        
* Oral argument held on whether to grant transfer; thus, transmittal date used.

Indiana Supreme Court Opinions (Civil Cases): April 1, 2014 - June 30, 2014
  Days from
to Grant
Grant to
Oral Arg.
Oral Arg
to Opinion
Total Time Majority Author Dissent COA Trial Ct.
South Shore Baseball 107 147 169 423 MM U A R
Andrews v. Mor/Ryde --- --- --- 100 LR U R R
Robinson v. Erie Ins. 51 119 96 266 BD U R A
Alldredge v. Good Samaritan) 41 203 180 424 MM U A R
Asklar v. Empire Fire Ins. 35 177 210 422 MM U R R
David v. Kleckner * --- 184 111 295 BD U R R
Smith v. Delta Tau Delta --- --- --- 223 BD U R A
Mental Health Actions A.S. --- --- --- 144 SD U A/R R
Ballard v. Lewis - Rule 56(A)** --- 132 55 187 Per U --- R
Alva Elec. v. Evansville-Vand 57 84 210 351 RR U A R
Bleeke v. Lemmon 44 203 132 379 SD U A/R A/R
Groce v. Amer. Fam. Ins. 65 77 189 331 BD U A A
Averages 57 147 150 295        
* Began counting when case was transmitted on transfer. Transfer was granted when opinion was issued.
**Began counting when 56(A) was granted.

90+% Unanimity

No matter how you dice it, the vast majority of the Indiana Supreme Court’s opinions were unanimous. All twelve civil cases were joined by all justices without a single dissenting or concurring opinion. Only one of the nineteen criminal opinions — Thang v. State — generated a dissenting opinion (written by Justice David and joined by Justice Rucker) while Justice Massa wrote a separate concurring opinion in Ramirez. (Justice Rucker concurred in the result in Berry but did not write separately to explain his rationale.) Thus, looking only at cases with a dissenting opinion, the justices were unanimous in 97% of their second quarter opinions; that rate falls to 93% if including the separate concurring opinion.

Oral Argument in Less Than Two-Thirds of Decided Cases

The justices heard oral argument in only 59% (10/17) of criminal cases and 75% (9/12) of the civil cases in which they issued opinions last quarter. That leaves nearly 35% of cases decided without oral argument. As explained in a previous post, the Court sometimes hears argument to decide whether to grant transfer in a case, although that practice has been declining.

Disposition Time

Counting from the time a case is “transmitted” to the Supreme Court with all briefs filed, a decision took an average of a little under eight months in criminal cases and just under ten months in civil cases. This is similar to the averages of 278 days in criminal cases and 275 days in civil cases during the first quarter. During the second quarter, two straightforward criminal cases in which oral argument was not held — Murdock and Harper — were at the low end of about two months or less while Brewington v. State and three civil cases — South Shore Baseball, Alldredge, and Asklar — each took well over 400 days.

As explained in the April posts about first quarter statistics, the initial period of delay (transmission on transfer to grant of transfer) is relatively short and necessary for the justices to prepare to discuss the cases at conference (31 days in criminal cases) or for the Administrator’s office to prepare a memo in addition to each justice’s preparation for conference discussion in civil cases (57 days).

The delay in scheduling oral argument — an average of four and a half months and sometimes more than six months—seems unnecessarily long in many cases. The shortest time between a transfer grant and oral argument was 70 days in the Ryan case, which is more than adequate for lawyers to prepare for an argument in nearly any case.* Although the justices do not hear arguments in July and August, they generally hear arguments on Thursdays most weeks during the remaining ten months of the year, allowing ample opportunity for prompt scheduling of arguments.

Finally, the delay between oral argument and issuance of an opinion varied widely. Surprisingly, the shortest delay was in the only case with a dissenting opinion, Thang v. State, where Chief Justice Dickson’s six-page majority opinion and Justice David’s seven-page dissent were both penned and coordinated in just 43 days. Perhaps putting disagreements to paper is more expeditious than the justices working through the differences to reach a unanimous opinion. Unanimous opinions in two civil and two criminal cases took more than 200 days after oral argument.

Court of Appeals Usually Reversed; Trial Courts a Mixed Bag

Similar to the first quarter, trial courts were generally affirmed by the Supreme Court in criminal cases (59% or 10/17) and reversed in civil cases (27% or 3/11, excluding the partial affirmance/reversal). The Court of Appeals was reversed in 56% (5/9) of civil cases and 73% (11/15) of criminal cases. Lawyers and litigants who have prevailed in the Court of Appeals shouldn’t necessarily assume the worst if they end up on the receiving end of a grant of transfer (a reasonable assumption in civil cases during the first quarter when the affirmance rate was a paltry 19%).

Several Narrow Victories for Criminal Defendants

The first quarter brought very little good news for criminal defendants as the trial court was affirmed in seven of the nine cases, and the two cases that were reversed were appeals by the State. (But two other appeals by the State were affirmed: Keck and I.T.) The second quarter included a number of reversals of convictions or sentencing relief but mostly on narrow grounds unlikely to apply broadly to many future cases:

The notable exception is Gaddie v. State, where a unanimous Court concluded “[t]o avoid conflict with the Fourth Amendment, Indiana Code section 35-44.1-3-1(a)(3), the statute defining the offense of Resisting Law Enforcement by fleeing after being ordered to stop must be construed to require that a law enforcement officer's order to stop be based on reasonable suspicion or probable cause.”


The last quarter under Chief Justice Dickson’s leadership brought an unusually high number of unanimous opinions, oral argument in less than two-thirds of cases resolved by opinion, and disposition times in excess of a year in more 20% of those opinions. Next quarter will bring a new Chief Justice and perhaps changes to one or more of these trends.
*As explained in this March 3 post, the Court has sometimes given counsel as little as two weeks to prepare for oral argument, but the court administrator calls and secures counsels’ consent before scheduling oral argument with less than a month’s notice.

Posted by Marcia Oddi on July 30, 2014 12:30 PM
Posted to Schumm - Commentary