This article originally appeard on Cohen & Malad LLP's website here. The piece, written by IndyBar member Arend J. Abel, is being published below in its entirety.
By Arend J. Abel, Cohen & Malad LLP
Two and a half years ago, I wrote a blog article wondering whether a decision from the Court of Appeals signaled a change in Indiana’s summary judgment standard. Now we have the answer. In a unanimous decision in Hughley v. State, which Indiana’s Chief Justice Loretta Rush wrote, the Indiana Supreme Court reaffirmed the Indiana summary judgment standard.
The Indiana standard differs from the federal summary judgment standard in important ways. Under the Indiana standard, a party seeking summary judgment must negate an element of the other party’s claim, or establish an affirmative defense, such as the statute of limitations, with undisputed evidence. Under the federal standard, by contrast, the moving party can simply assert that the other party has no admissible evidence to support the claims, the so-called “no evidence” summary judgment motion, which was sanctioned by the United States Supreme Court in Celotex Corp. v. Catrett
Despite criticism of the Indiana Standard, Chief Justice Rush and the other four members of the Indiana Supreme Court adhered to it, noting that the criticism “overlooks the policy behind that heightened standard.” “Indiana,” Justice Rush wrote for the Court, “consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.”
In the course of deciding the case, the Supreme Court held a “a perfunctory and self-serving” affidavit was enough to prevent summary judgment. In the case, an individual had been arrested for dealing cocaine, in his house, where “apparent cocaine residue and other indicia of cocaine dealing were in plain view on the kitchen table.” Defendant was searched, and police found more than $3800 in his front pocket, mostly in twenty-dollar bills. Nevertheless, in the State’s civil forfeiture case, the defendant filed an affidavit that stated merely that the money was not proceeds of criminal activity and that he intended to use it only for lawful purposes. There was a similar issue with Defendant’s 1977 Buick, leading to a similar paragraph in the affidavit. This, the Court held, was enough.
The high-water mark in questioning the Indiana standard was a dissenting opinion by former Justice Boehm, joined by former Chief Justice Shepard, followed by a fairly gutsy opinion by the Indiana Court of Appeals. But now it is clear that Indiana will remain a jurisdiction where it is harder for parties to get summary judgment. For those representing civil plaintiffs, that’s a big win.