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Thursday, October 22, 2015

Ind. Courts - "Dissenting statement from denial of review — first ever?"

That is the heading to an Oct. 20th post in the At the Lectern: Practicing Before the California Supreme Court blog of Horvitz & Levy. It reports on trhe CA Supreme Court denial of review in a high profile case where 3 justices recorded votes to grant review, continuing:

Record votes are not common, but they do happen with some regularity, although it’s rather rare for a petition for review to come up just one vote short of being granted.

What’s really noteworthy from a Supreme Court practice standpoint, however, is that Justice Liu not only recorded his vote, but also wrote a dissenting statement from the denial of review. The statement — a long one, signed by Justice Cuéllar but not Justice Kruger — says that the case “raises an important legal issue that likely affects hundreds of children each year: whether and, if so, how the concept of a voluntary, knowing, and intelligent Miranda waiver can be meaningfully applied to a child as young as 10 years old.” The statement also suggests that the “Legislature may wish to take up this issue in light of this court’s decision not to do so here.”

U.S. Supreme Court justices will sometimes write dissents from certiorari denials and Ninth Circuit judges occasionally file “dissentals” from denials of en banc review. However, to our knowledge, a dissenting California Supreme Court justice has never before stated reasons for wanting to grant a petition for review.

ILB: What about Indiana; haven't we had this here? The ILB asked Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, who responded:
Yes, we've had a least three this year:One difference is the timing (continues Schumm, quoting more of the Horvitz & Levy post):
Another thing about Justice Liu’s dissenting statement — it apparently delayed the ruling on the petition for review. Atypically, the order denying review was not issued after the court’s weekly Wednesday conference and thus did not appear on the court’s list of conference actions. (That’s why we didn’t notice the dissenting statement right away.) Instead, it was on Friday that the court denied review and filed Justice Liu’s statement, the last day to which the court had — and could have — extended its time to rule.
I think our justices take significantly longer than a day or two to write their dissents from the denial of transfer.

These opinions usually represent strongly held views of two of the five justices and signal issues likely to arise in the future on which counsel and lower courts should take careful notice.

Posted by Marcia Oddi on October 22, 2015 09:03 AM
Posted to Indiana Courts