By Joel M. Schumm, Indiana University Robert H. McKinney School of Law
On September 10, the Indiana Supreme Court released its annual report for the fiscal year ending June 30, 2018. The report is full of interesting statistics, information about the court’s activities and several pictures. This post offers a few highlights; you may access the entire report here.
Most law is made in the Court of Appeals, which issues several hundred published opinions each year. Transfer is sought in less than half of the cases decided by the Court of Appeals. When it is, relatively few of the appellate opinions will be vacated by the Indiana Supreme Court through the grant of a petition to transfer.
Transfer is about twice more likely in civil cases (10.6%) than in criminal cases (5.7%). As shown on page 14 of the report, the Court issued 28 opinions in civil transfer cases while denying 236 petitions and issued 24 opinions in criminal transfer cases while denying 398 petitions. Over the previous five years, the Court issued opinions in an average of 38 civil and 31 criminal transfer cases.*
As in the past, the vast majority of opinions (84%) were unanimous. Only 7% were 3-2 opinions, and 9% were 4-1. Justice David was the most likely to write a dissenting opinion. He also wrote a higher percentage of majority opinions in criminal cases, while Justice Slaughter’s opinions were almost all in the civil realm. The table below, which is excerpted from the report, shows the number and types of opinions by each justice.
Although disciplinary cases have long been decided by per curiam opinions, most transfer opinions are authored by a justice. Nevertheless, five civil and five criminal transfer cases were decided by per curiam opinions, which are almost always short and resolve the case on very narrow grounds.
The Court heard oral argument in 56 cases, which is the lowest number in recent memory and considerably below the average of 67 arguments over the past five years.
As shown in the following graphic and consistent with the opinion numbers above, arguments were more common in civil cases (31) than criminal (24) cases. Arguments are usually held after transfer is granted, especially in criminal transfer cases (65% of arguments) but also civil transfer cases (58% of arguments).
A summary of some key highlights of the Court of Appeals’ annual report will be discussed in a subsequent post.
*The increased odds of transfer in civil cases is not surprising for a few reasons. Civil litigants will usually be paying for an appeal, while most criminal defendants are represented by appointed counsel. Those appointed to represent criminal defendants in Indiana must file an advocative brief, unlike the federal and some state systems that allow withdrawal with the filing of an Anders’ brief. Mosley v. State, 908 N.E.2d 599 (Ind. 2009). Finally, criminal defendants must seek transfer to preserve any federal constitutional claims for later habeas review. O’Sullivan v. Boerckel, 526 U.S. 838 (1999).