« Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 4 NFP memorandum decision(s)) | Main | Ind. Decisions - Supreme Court decides one today, the LaPorte County police/prosecutors eavesdropping case »

Wednesday, March 30, 2016

Ind. Decisions - How Soon is Too Soon to Act on Court of Appeals’ Opinions?

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

If you’re reading this, you probably read Court of Appeals’ opinions soon after they are issued. If designated for publication, those opinions are precedential and immediately binding on trial courts throughout the state. (Indiana does not have horizontal stare decisis, so another panel of the Court of Appeals is not bound to follow the decision.)

But what about the people most affected by a case—the litigants in that case? According to Appellate Rule 65(E), “the trial court . . . and parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified.” Certification does not occur for at least 40 days, giving time for either party to file for rehearing or the losing party to seek transfer. If a petition is filed, certification may not occur for months—until rehearing or transfer is denied or an opinion resolving the petition is issued.

“Immediate” Transfer of Custody

The motion practice in the Indiana Supreme Court’s opinion in a March 15 child custody appeal is remarkable. There, the trial court denied Mother’s motion to change custody. The Court of Appeals reversed in a 2-1 opinion. Three weeks after the opinion was issued, Mother filed a Verified Emergency Motion for Immediate Compliance with Appellate Decision, which the Court of Appeals granted just one day later by the same 2-1 vote. The majority ordered custody “immediately transferred” to the mother so the child “can begin school in Oregon.” Father’s motion to reconsider was denied; he also sought transfer.

The Supreme Court heard oral argument on December 3 and issued an order granting transfer the following day. Mother’s counsel was diplomatic at oral argument in noting the non-compliance with Appellate Rule 65, a point with which Justice Dickson agreed. (6:30-6:40, 7:45-7:55) The order includes the following sentence: “The Court orders Appellant to transfer physical custody to Appellee expeditiously after commencement of the December 2015 holiday recess at the child’s Oregon school, and not later than one week prior to commencement of school after the holiday break at the school child will attend upon returning to Indiana.”

Little Published Guidance

Although Rule 65(E) mentions only trial courts, its rationale would seem to impose the same limitation on the Court of Appeals. A just-issued opinion may not be the final word; transfer is granted in nearly 10% of cases and other cases are occasionally altered on rehearing. Especially in a child custody case, moving a child from one parent to another seems ill-advised until a decision is final.

Criminal cases arguably present somewhat different concerns. Consider, for example, the following appellate reversal of a trial court’s revocation of probation in Ripps v. State in 2012:

Ripps was sixty-nine years old and suffering from serious health issues, including terminal cancer; he was attempting to adhere to his probation conditions, as evidenced by his going to the sheriff’s office to register his new address; although he was initially in violation of the residency restriction, evidence reveals he was taking steps to correct the violation by finding a new residence; while he did live within 1,000 feet of the public library, this was only so by about twenty feet and some ambiguity exists in how this distance was measured . . . .
There, the court issued the following order the same day it heard oral argument:
This court held oral argument this morning and having read all the briefs and deliberated on the issues, we conclude that Ripps has adequately demonstrated that revoking his probation on the present basis was an abuse of discretion. 2. While ordinarily Indiana Appellate Rule 65(e) would require certification of the opinion prior to action by the trial court, in equity and law, courts have inherent authority to require immediate compliance with their orders and decrees in order to give effective relief. Noble County v. Rogers, 745 N.E.2d 194, 198 (Ind. 2001); State ex rel. Brubaker v. Pritchard, 236 Ind. 222,226-27, 138 N.E.2d 233, 235 (1956). A formal opinion will follow in due course. Accordingly, we direct the trial court to order Ripps' release forthwith.
Conclusion

Although Appellate Rule 65(E) almost always precludes immediate relief after an appellate opinion, perhaps the cases cited in the Ripps order could aid a party in extraordinary circumstances, such as a terminal illness, in “order to give effective relief.”

Posted by Marcia Oddi on March 30, 2016 11:54 AM
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Schumm - Commentary