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Friday, April 29, 2016

Ind. Decisions - Supreme Court denies rehearing in asbestos statute of repose law decision

In an order filed late yesterday afternoon, the Supreme Court, by a vote of 3-2, denied the petitions for rehearing in Larry Myers, et al. v. Crouse-Hinds, et al.: GE v. Mary R. Geyman, et al.: Owens-Illinois, Inc v. Mary R. Geyman, et al. The vote:

All Justices concur, except Rush, C.J., and Massa, J., who vote to grant rehearing.
David, J., concurs with separate opinion in which Dickson and Rucker, JJ., concur.
Massa, J., dissents with separate opinion in which Rush, C.J., concurs.
Massa and Rush also dissented in the original, March 2nd opinion.

From J.Massa's dissent yesterday (joined by CJ Rush):

The State’s Brief in Support of Rehearing raises issues worthy of more deliberative consideration, several of which were noted in dissents from the Court’s opinion. Myers v. Crouse-Hinds Div. of Cooper Indus., Inc., No. 49S00-1501-MI-35, 2016 WL 825111, at *6, *8 (Ind. Mar. 2, 2016) (Rush, C.J., and Massa, J., dissenting with separate opinions). The Brief overlooks, however, the most compelling precedents in its favor that should be noted sua sponte for lawyers and judges going forward.

Forty years ago, this Court unanimously and unequivocally held that the Attorney General must be served at the outset of suits attacking the constitutionality of a state statute. Sendak v. Denbro, 264 Ind. 323, 326, 343 N.E.2d 779, 781 (1976). Moreover, we made clear that the remedy for said failure of service is reversal and remand for new proceedings in the trial court where the Attorney General can meaningfully participate: * * *

Here, we are confronted with one of those “future cases” our predecessors set out to prevent. In response to the defendants’ motion for summary judgment, the plaintiffs argued the asbestos statute of repose, Ind. Code § 34-20-3-2, was unconstitutional. With that issue raised, the presiding trial courts had a statutory duty to notify our Attorney General: * * *

[much more worth reading]

A petition for rehearing is an important vehicle that gives our Court the “opportunity to correct its own omissions or errors.” Griffin v. State, 763 N.E.2d 450, 450–51 (Ind. 2002) (quoting Daviess–Martin Cnty. Rural Tel. Corp. v. Pub. Serv. Comm., 132 Ind. App. 610, 625, 175 N.E.2d 439, 440 (1961)). In my opinion, it is not just an opportunity, but our responsibility, which today we evade. For the reasons explained in my dissent in Myers, 2016 WL 825111 at *7–10, and because our precedent compels remand to allow State participation, I respectfully dissent.

From J.David's concurring opinion (joined by J.Dickson and J.Rucker)
I write separately to briefly address J. Massa’s dissent from denial of rehearing. While I appreciate Sendak’s mandate that we remand for new proceedings in the trial court where the Attorney General can meaningfully participate in the case when the Attorney General is not properly notified that a state statute is being challenged as constitutional, absent from the Sendak opinion is any mention that this Court permitted the Attorney General to brief the matter on its merits as we did in this case.
ILB: For more on the original decision, see this March 4th post, "Indiana Asbestos Exposure Repose Law Unconstitutional," and this March 30th post by Prof. Joel Schumm, headed "How Final is a 3-2 Opinion Issued Weeks Before Justice Dickson’s Retirement?" From the prescient post:
If a rehearing petition is filed in Myers, the response would be filed—and the case fully briefed and likely transmitted for a ruling—a few days before Justice Dickson’s retirement. Thus, the Court could issue a ruling before he leaves, which would presumably be a 3-2 order denying rehearing.

Posted by Marcia Oddi on April 29, 2016 09:06 AM
Posted to Ind. Sup.Ct. Decisions