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Wednesday, July 16, 2014

Ind. Courts - The Power of One: How Do Dissenting Court of Appeals’ Opinions Fare on Transfer?

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

Dissents are a pretty rare occurrence at the Indiana Court of Appeals. As discussed in this March 13 post, dissenting opinions were issued in only 72 (about 3.5%) of the court’s more than 2,000 opinions last year.* Not surprisingly, as explored below, and as highlighted repeatedly in the weekly transfer list (which last week included two 2-1 opinions in its four grants), these unusual cases appear to receive more scrutiny if a petition to transfer is filed - and transfer is granted at a significantly higher rate than from unanimous opinions.

Court of Appeals’ Dissents: Civil/Criminal and Published/Unpublished

Although civil cases comprise about 40% of the Court of Appeals’ caseload, civil cases drew 51% of the dissenting opinions in 2013. Not surprisingly, unlike the overall publication rate of 25% of Court of Appeals’ opinions, 60% (43/72) of the opinions with dissents were published. Considering how unusual it is for a judge to feel strongly enough to dissent in a case, one might expect an even higher percentage of published opinions - or at least published dissents; Appellate Rule 65(A) provides that a “judge who dissents from a not-for-publication memorandum decision may designate the dissent for publication if one (1) of the criteria [for publication] is met.”

Transfer Sought

A party who loses an appeal but receives a dissenting opinion may feel emboldened to seek transfer, especially if the dissenting opinion is especially well-reasoned and published. Last year, transfer was sought in 892 cases, which is about 42% of the cases decided by the Court of Appeals.** But transfer was sought in 60% (43/72) of the 2013 Court of Appeals’ cases with a dissenting opinion. ***

Significantly Higher Rate of Transfer Grants - Especially From Unpublished Opinions

Last year the Indiana Supreme Court granted transfer in about 21% of FP cases in which transfer was sought but only 3.5% of NFP cases - with an overall rate of 9.3%.

The success of petitions in cases with dissenting opinions, though, was much higher. One petition remains pending and 31% (13) of the remaining 42 petitions from opinions that included a dissent were granted. Of the 29 petitions denied, 17 were unanimous while 7 had two votes for transfer and 5 had one vote for transfer. Of the 17 unanimous denials, one was initially granted but then vacated after oral argument and two others were denied after hearing oral argument.

Transfer was granted in 29% (4 of 14) of the NFP opinions with a dissent and 31% (9 of 29) of published opinions with a dissent - a high and remarkably similar rate. While the 300+% improved overall odds are remarkable, the FP/NFP difference is especially stark. Litigants with a dissent in a FP opinion have about 50% better odds at transfer than those seeking transfer from a unanimous opinion, and those with a dissent in a NFP are eight times more likely to receive a grant of transfer than those with a unanimous opinion.

The Cases - and Almost Always Different Result

Although opinions have not yet been issued in five of the 13 cases in which petitions were granted, only one (12.5%) of the remaining eight — Alva Electric v. Evansville-Vanderburgh School Corp. — reached the same result as the Court of Appeals’ majority. The seven cases reaching the opposite result were:

The high reversal rate is not surprisingly in light of these April 11 and April 28 posts discussing first-quarter Indiana Supreme Court opinions. As explained there, a grant of transfer is usually followed by an opinion reaching a result opposite the appellate court’s conclusion, although the odds were not quite as stark as from opinions that included a dissent - 31% of criminal cases and 19% of civil cases reached the same result.

But is it possible that the high rate of transfer grants among cases with a dissent in the Court of Appeals is being driven by something else? The sample size is admittedly small, and it is impossible to know if the Indiana Supreme Court would have granted transfer in a case had no dissent been written. Perhaps the majority opinion, if joined by two - instead of just one - of the other judges, would not have escaped scrutiny. It is notable that the Attorney General petitioned to transfer in five of the seven cases and generally enjoys a much higher rate of success than do criminal defendants seeking transfer.

Beyond these opinions, transfer has been granted and opinions are pending in the following five cases that included a dissenting opinion in the Court of Appeals:

(Transfer is pending in Klepper v. Ace American Insurance Co. The case was transmitted on transfer on April 29, 2014.)

Disagreements Among Panels

The court decides cases in three-judge panels that rotate every four months. Therefore, with 72 dissents from the fifteen judges over the course of three panels during the year, just under 5 dissents are expected per panel.**** As discussed in an August 23, 2013 post, however, the Riley-Brown-Bradford panel had an especially large number of dissents last year - ultimately a whopping 15, which is more than three times the average.

None of the fifteen judges were able to draft all their majority opinions in 2013 without drawing a dissent from a colleague. Judges Bailey and Najam fared the best, drawing just one dissent each. Judge Brown had the most with nine.

Dissents by Individual Judges

The following table provides individual data about the 2013 dissenting opinions of each judge and how each dissent fared on transfer.

2013 Dissenting Opinions
Judge Total Dissents Transfer Sought Transfer Grant Aff/Rev
Bailey 3 1 0 (0%) ---
Baker 12 4 0 (0%) ---
Bradford 4 2 1 (50%) P
Brown 7 3 0 (0%) ---
Crone 4 3 (1 pending) ---
Friedlander 2 2 1 (50%) A
Kirsch 10 6 3 (50%) 2R, 1P
May 1 1 0 (0%) ---
Najam 2 1 1 (100%) R
Riley 14 9 1 (11%) R
Robb 8 6 4 (67%) 1R, 3P
Vaidik 5 5 2 (40%) 2R
Notes: Judges Barnes, Mathias, and Pyle wrote no dissenting opinions in 2013. The final column notes the number of opinions in which transfer was granted that were (A)ffirmed, (R)eversed, or are (P)ending.


Considering the significantly higher rate at which transfer is granted in cases that include a dissenting opinion from the Court of Appeals - and the strong likelihood the Indiana Supreme Court will reach a result opposite the one the Court of Appeals reached - one might expect transfer to be sought at a rate even higher than the 60% last year. Moreover, judges on the Court of Appeals, who are generally a pretty agreeable group, can easily wield their power - through even a short dissenting opinion in an NFP case - to enhance the chances of Indiana Supreme Court review.

*I have counted any opinion with the word “dissent” in the vote line as a dissenting opinion. This includes three cases in which Judge Kirsch dissented without writing an opinion and a number of cases in which the separate opinion was titled both a concurring and dissenting opinion. My methodology appears to differ a bit from that used in the Court of Appeals’ annual report, which included 72 dissenting opinions allocated somewhat differently among a few of the judges.

**The Indiana Supreme Court counts cases on a July to June fiscal year, while the Indiana Court of Appeals uses a calendar year. The Court of Appeals decided 2143 cases by opinions in 2012 and 2058 in 2013, which I have averaged (2100) and used as the denominator of 892 (the number of cases in which transfer was sought).

*** The timing is admittedly not perfect. I am comparing 2013 Court of Appeals’ opinions and 2013 transfer dispositions, some of which involve Court of Appeals’ opinions decided weeks or even a few months into 2014.

****This number would be slightly lower because it does not account for senior judges, who are assigned to author opinions on rotation as a 16th judge for panels throughout the year. Only three opinions authored by senior judges (one each by Judges Barteau, Sharpnack, and Shepard) drew a dissent in 2013.

Posted by Marcia Oddi on July 16, 2014 03:30 PM
Posted to Schumm - Commentary