Indiana Law Review Why Changing the Supreme Court's Mandatory Jurisdiction Is Critical to Lawyers and Clients Randall T. Shepard' Business managers consistently stress how competent managers should conduct their oversight responsibilities: limit the number of direct reports. Leaders who seek to give daily direction to too many people are managers who do not have the time to think the larger strategic thoughts that make organizations run well. The Indiana Supreme Court faces a predicament common to many managers at the head of large organizations. The current requirement of the Indiana Constitution that all criminal appeals of cases involving sentences of more than fifty years come directly to the Supreme Court from the trial court has shifted a substantial number of criminal appeals to the Supreme Court for initial review. These were previously handled very ably by the state's intermediate court. Ifthe Supreme Court is to play well its role as the leader ofthe state's legal system, we must find a way to limit the number of "direct reports." This fall, we will ask the voters of the state to amend the constitution to restore this capacity for leadership to the Indiana Supreme Court. I describe here why this is a good idea. I. HOW We Got Here Alas, this is the second time in just a few years that we have asked the voters to solve more or less the same problem. A provision placed in thejudicial article of the Constitution in 1970 gave persons who received a criminal sentence of more than ten years the right to appeal directly from the trial court to the Supreme Court.' More aggressive drug prosecutions, a renewed war on crime generally, and increases in statutory penalties led to mass increases in the number Chief Justice of Indiana. Princeton University, A.B., 1969; Yale Law School, J.D., 1972; University of Virginia, LL.M., 1995. 1. "The supreme court shall have jurisdiction, co-extensive with the limits ofthe state, in appeals and writs of error, under such regulations and restrictions as may be prescribed by law. It shall also have such originaljurisdiction as the general assembly may confer." IND. CONST, art. VII, § 5, amended on Nov. 3, 1970. The provision now reads in relevant part: "The Supreme Court shall exercise appellate jurisdiction under such terms and conditions as specified by rules except that appeals from ajudgment imposing a sentence ofdeath, life imprisonment, or imprisonment for a term of greater than ten years shall be taken directly to the Supreme Court." Id. 1 102 INDIANA LAW REVIEW [Vol. 33:1 101 of mandatory criminal appeals during the 1980s.^ This increase meant that nearly all other appellate business was squeezed into a small percentage ofthe court's time. As I stated in my 1988 address to the General Assembly, "The present ten-year rule has flooded the Supreme Court with criminal cases—93% of our opinions in 1986—and nearly forced off our docket the kinds of civil cases which bring most people to court: custody and child support, landlord/tenant disputes, tort law, and the like."^ The bench and bar proposed a constitutional amendment that raised from the ten years to fifty years the threshold for direct appeals. The legislature approved this proposal and placed it on the ballot for November 1988. The Indiana State Bar Association provided strong support, particularly in educating the public.'* Local bar associations and judges did the same.^ There was no opposition to our proposal to amend the Constitution. The public voted *'yes" by a wide margin.^ 2. The following table illustrates the constraints placed upon the court by the direct appeal mandate: Year Opinions Direct Appeal Opinions (%} 395 (89%) 291 (88%) 280 (86%) 281 (87%) 285 (85%) 246(81%) 226 (84%) 210(80%) 234 (85%) 138 (84%) 137 (83%) Randall T. Shepard, Changing the Constitutional Jurisdiction of the Indiana Supreme Court: Letting a Court ofLast Resort Act Like One, 63 Ind. L.J. 669 (1988). 3. Randall T. Shepard, State ofthe Judiciary, 3 1 Res Gestae 353, 354 (1988). 4. See Randall T. Shepard, Vote "Yes" on Proposition 2 or "I'm Sorry, But There's No Supreme Court Case on That, " 32 RES GESTAE 56 (1988). 5. See Doug Haberland, Chief Justice Makes Case for Proposition 2, FORT WAYNE Journal-Gazette, Sept. 28, 1988, at IC ("The general populace doesn't have the access to the courts it deserves,' said Wells Circuit Court Judge David L. Hanselman Sr."); James O. McDonald, Prop 2 IsforLaw-Abiding Citizens, TerreHauteTrtoune-Star, Oct. 23, 1 988, at C3 ("The Terre Haute Bar Association; Indiana Bar Association; Supreme Court Judges Shepard and Di[cks]on; Vigo County Judges Bolin, Brown, Eldred, Kite and McCrory; county political chairmen Robert Wright and Ruel Bums; Sheriff Jim Jenkins; Prosecutor Phil Adler; and Police Chief Gerald Loudermilk all have endorsed passage of Proposition 2."). 6. In 1998, 1,034,309 citizens voted for the amendment to article VII, section 5; only 153,640 voted against it. Secretary of State, Indiana General Election 1998: Constitutional Amendments (visited May 30, 2000) . 7. See Kevin W. Betz&Andrew T. Deibert, An Examination ofthe Indiana Supreme Court Docket, Dispositions, and Voting in J 993, 27 IND. L. REV. 719, 719 (1994) (58 criminal direct appeals and 185 opinions issued in 1992). 8. The Indiana Supreme Court adopted the Rules of Evidence effective January 1 , 1 994. See Bryant v. State, 660 N.E.2d 290, 310 n.23 (Ind. 1995). 9. The rules amended are: Indiana Trial Rules 42, 53.4, 54, 58, 59, 65, 72, 77, 85; Indiana Criminal Rules 1 1, 15, 16, 18, 19, 23, 24; Indiana Appellate Rules 2, 4, 8.2, 9, 17; Indiana Small Claims Rules 5, 8, 1 1, 15; Indiana Admission and Discipline Rules 2, 3, 6, 12, 13, 15, 16, 21, 25, 29; IndianaAdministrative Rules 1, 2, 7, 8; Indiana Judicial Conduct Canon 7; Indiana Professional Conduct Rule 7.3; Indiana Post-Conviction Rule 1. 10. In 1994, the General Assembly twice amended Ind. CODE § 35-50-2-3, which instructs a court on how to sentence a defendant convicted ofmurder. Compare Pub. L. No. 164-1994 with Pub. L. No. 158-1994. "The first amendment changed the presumptive sentence for murder in section 3(a) from forty to fifty years and reduced the possible enhancement time The second amendment allowed for the exclusion of mentally retarded individuals from the death of life imprisonment without parole sentencing option of section 3(b). . . . However, the second amendment did not incorporate the changes of the first amendment." Smith v. State, 675 N.E.2d 693, 695 (Ind. 1996). There were, in effect, two different Indiana Code sections 35-50-2-3, each with different presumptive sentences for murder. See id. 11. See Pub. L. No. 148-1995, § 4. 1 104 INDIANA LAW REVIEW [Vol. 33:1 101 Criminal Direct Year Appeals 1995 54 1996 82 1997 112 1998 97 1999 118 This expansion in direct appeals reflected the fact that most murder cases became direct appeals and earned a place on the docket of the Supreme Court, whereas formerly only those in which the sentence was fully enhanced or in which there was an habitual offender finding earned mandatory places on the Court's docket. The corollary, of course, was that there was less time available to hear the appeals of civil litigants or of criminals whose sentences were fifty years or less: Total Criminal Criminal Direct Total Total Crim + Year CiviP' Transfer Criminal'^ Civil 1995 41 (38%) 29 (27%) 38 (35%) 67 (62%) 108(100%) 1996 38(31%) 25 (20%) 59 (48%) 84 (69%) 122(100%) 1997 45 (27%) 27(16%) 94 (57%) 121 (73%) 166(100%) 1998 31(23%) 17(12%) 89 (65%) 106 (77%) 137(100%) 1999 47 (27%) 24 (14%) 106 (60%) 130 (73%) 177(100%) The message of this chart is one of restricted access to justice. As I said to the legislature: "[0]nce again [it is] very difficult for parents or business people or injured Hoosiers (or for that matter appellants in criminal cases who got two-year sentences or 42-year sentences) to get a hearing on the merits in the Supreme Court."*^ II. What TO Do Next It is unacceptable, that over the long term, the Indiana Supreme Court will be open only to those whose sentences are the highest and virtually closed to people with ordinary family and business legal problems. The legal turn of events that created the present predicament has just four solutions: a dramatic decline in the number of murders, a decision by the legislature to reduce the 12. Included in this number are civil direct appeals and civil transfers. 13. Included in this number are criminal direct appeals and criminal transfers. 14. Randall T. Shepard, Indiana Courts as Servants ofTheir Communities, 4 1 RES GESTAE, Feb. 1998, at 28, 33. 2000] MANDATORY JURISDICTION 1 1 05 penalty for murder, an outbreak oftrial court leniency on murders, or amending the constitution. While most ofthese alternatives seem highly unlikely, there are a number of changes one might contemplate as partial solutions. After all, the challenge is one that high appellate courts have regularly faced in one way or another: a growing criminal caseload crowding out the other business. It has certainly been the history of our own state. When the Indiana Appellate Court was created in 1891, it had no criminal jurisdiction at all.'^ By the time reformers were revising thejudicial article in the 1960s, it seemed prudent to send the bulk ofthe criminal business to the Court of Appeals for initial review. A state high court faced with a growing docket has at its disposal a relatively fixed list oftools. These tools afford some relief, but, as I shall argue, they are not adequate permanent solutions for the problem Indiana now faces. A. Work Faster To be sure, a court can simply work faster and turn out more opinions. When the crunch came in the mid-1980s, the Indiana Supreme Court issued record numbers of criminal opinions. In 1986, for example, the five members produced a total of 445 signed opinions.'^ Similarly, the current Justices have done their best to increase the number ofopinions issued on the merits. It has not been enough. As I said in my 1998 state ofthe judiciary address: "Last year the Supreme Court had its most productive year since 1 99 1 , issuing 30 percent more opinions than the year before, including moving a record number of death- penalty cases. And when we were done, we were farther behind than we were on Jan. I."*' Moreover, this rapid-fire approach is necessarily fraught with the chance for error. During the 1980s, for example, the volume was so high that we adopted and reversed a rule within a matter ofweeks. ^* The members ofthe court simply could not keep track of the precedent. '^ 1 5. Regarded initially as a temporary expedient, the court was authorized to exist for only six years. See 1891 Ind. Acts ch. 9, § 26. In 1897, the court's existence was extended for four years. See 1897 Ind. Acts ch. 9, § 3. Finally, in 1901, the General Assembly directed that it be a permanent body. See 1901 Ind. Acts ch. 247, § 19. 16. See Shepard, supra note 2, at 682. 17. Shepard, supra note 14, at 33. 1 8. The Indiana Supreme Court's decision in Phillips v. State, 492 N.E.2d 1 (Ind. 1 986), which held that to establish admissibility ofa statement made after an accused has invoked his right to remain silent during custodial interrogation, the state must show that the accused later initiated the dialogue and knowingly waived the previously invoked right to remain silent, was set aside less than six weeks later in Moore v. State, 498 N.E.2d 1 (Ind. 1986), which held that a showing that the dialogue was initiated by the accused was not necessary. 19. Compare Groves v. State, 456 N.E.2d 720 (Ind. 1983) (reversible error to admitting Regiscope picture without foundation ofevidence about the manner in which picture was processed and complete chain of custody), with Stark v. State, 489 N.E.2d 43 (Ind. 1986) (proper to admit 1 1 06 INDIANA LAW REVIEW [Vol. 33 : 1 1 1 B. Say Less Another approach is to say less, that is to use summary dispositions for those appeals that are present on the merits. Some courts have been known to dispose of cases by order or by simply writing "affirmed."^^ A slightly better alternative is the summary opinion. When the Indiana Supreme Court was struggling with volume late in the nineteenth century, some opinions on the merits ran as little as a few sentences.^* This is spectacularly unpopular with lawyers and clients. A recent resolution adopted by the American Bar Association affirms this unpopularity: "RESOLVED, That the American Bar Association urges the courts ofappeal, federal, state and territorial, to provide in case dispositions (except in those appeals the court determines to be wholly without merit), at a minimum, reasoned explanations for their decisions."^^ C Say Nothing at All, in Print Yet another alternative is the unpublished opinion. All of the federal courts ofappeal use this device, by which only some ofthe court's decisions are submitted for inclusion in the Federal Reporter.^^ In the first two decades after the federal courts began the practice, the trend has been to publish fewer opinions.^"* Anecdotal information suggests continuing decline.^^ Regiscope photograph without evidence of manner of processing or complete chain of custody). 20. For example, the Fifth Circuit has a rule on "Affirmance Without Opinion." U.S. Ct. OF App. 5th Cir. R. 47.6. In 1985, the Indiana Court of Appeals disposed of 97% of the cases it heard by opinion. See Division of State Court Administration, 1985 Indiana Judicial Report, supra note 1, at 16. The supreme court issued opinions in 99% of the cases it decided on the merits. See id. at 2, 10. This figure does not include denials of requests for transfer of cases previously heard by the court of appeals. Some other jurisdictions dispose of less than one fourth ofthe cases heard by opinion. For example, the New Jersey Supreme Court issued opinions in 1 8% of the cases it heard, while the Kentucky Supreme Court issued opinions in 23%. See Nat'l Center for State Courts, State Court Caseload Statistics: Annual Report 1 985, at 1 6. 21. See, e.g., Norris v. State, 69 Ind. 416 (1879) (46 words) ("This was a prosecution for selling 'one gill ofwhiskey ' without license. The same question is made in this case as that decided in the case of Arbintrode v. The State, 67 Ind. 267 (1879). Upon the authority of that case, the judgment in this case must be reversed. Judgment reversed."). 22. American Bar Association, House of Delegates Resolution 8B (Feb. 14, 2000). 23. See Lauren K. Robel, The Myth ofthe Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts ofAppeals, 87 MiCH. L. Rev. 940, 941-44 (1989). 24. See Martha J. Dragich, Will the Federal Courts ofAppeals Perish ifThey Publish? Or Does the Declining Use ofOpinions to Explain and Justify Judicial Decisions Pose a Greater Threat?, 44 AM. U. L. Rev. 757, 761 n.l4 (1995). Dragich cites several sources suggesting a decline of40% in the Fifth Circuit's publication rate between 1969 and 1987, for example. See id. 25. See Stephen Reihnhardt, The Supreme Court, the Death Penalty, and the Harris Case, 102 Yale L.J. 205, 217 (1992) ("When I came on the court [United State Court of Appeals for the 2000] MANDATORY JURISDICTION 1 1 07 This same practice is followed in a good many state courts, including Indiana.^^ As in the federal courts, the use ofunpublished decisions in state court appears to be increasing. Professor Keith H. Beyler calculated that the percentage of unpublished opinions in the Indiana Court of Appeals rose from 47.6% in 1981 to 62.8% in 1987.^^ In 1999, that court decided seventy-three percent of its cases by unpublished memoranda.^* Indeed, there is a corollary tool available to state high courts: making an intermediate court opinion "disappear" by ordering it depublished. California is famous for this draconian, if convenient practice. ^^ This too is relatively unpopular. Commentators have recognized that the very act ofputting pen to paper will itselfhave a sobering effect. However, the absence ofthe published opinions severely handicaps the timely critical review ofjudicial action by legal scholars, the press and the bar. It enhances the possibility that victimized users of the judicial process will develop a deep seated distrust of the institution, such that quixotic proposals for restraints of judicial power of the past, will not be derailed by timely judicial accommodation. In short, the lesson we may learn is that justice rendered in silence is not justice.^^ Seventh Circuit Chief Judge Richard Posner has said that unpublished opinions Ninth Circuit] ten years ago, we wrote reasoned opinions in about seventy-five percent ofour cases. We now write them in about twenty-five percent. In the large majority of our cases, we wr4te memorandum dispositions which are unpublished. It is no secret that there is not as much time, attention, or care given to the disposition of cases decided in memoranda."). 26. See IND. APPELLATE Rule 1 5. 27. See Keith H. Beyler, Selective Publication Rules: An Empirical Study, 2 1 LOY. U. Cm. L.J. 1,22(1989). Unpublished Opinions in the Indiana Court of Appeals Year Dist. 1 Dist. 2 Dist. 3 Dist. 4 Ave. 1981 38.3% 63.4% 44.8% 43.9% 47.6% 1982 47.8% 71.4% 55.2% 62.2% 59.2% 1983 52.1% 69.0% 51.7% 64.2% 59.3% 1984 60.0% 66.4% 53.4% 59.8% 59.9% 1985 51.8% 66.4% 45.6% 64.4% 57.1% 1986 53.4% 62.7% 47.5% 58.2% 55.5% 1987 56.1% 70.9% 56.5% 67.5% 62.8% See id 28. See^CouRT OF Appeals of Indiana 1999 Annual Report 4 (1999) (unpublished manuscript on file with the Court of Appeals) (593 published opinions, 2200 total opinions). 29. See Joseph R. Grodin, The Depublication Practice ofthe California Supreme Courts 72 Cal.L. REV. 514(1984). 30. Lawrence A. Salibra, II, Increase in Unpublished Opinions Undermines Public Trust in Courts, 10 Lgl. OPINION LETTER 1 (Apr. 28, 2000). 1108 INDIANA LAW REVIEW [Vol. 33:1101 are a "formula for irresponsibility."^* Critics especially dislike the limits on subsequent citation that are a feature common to most such rules that limit subsequent citation. ^^ D. AddMore Judges Another common tool is simply to increase the number ofjudges sitting on the state's highest court, on the presumption that more hands will add to the total volume the court is able to turn out. Ofcourse, the increase in the number ofjustices does not create a similar increase in the number of cases capable of being handled. This is so because it takes longer for a group of seven or nine to come to resolution than it takes a group of five to do so.^^ While there may be other reasons to expand a court, such as making room forjustices from different parts of society, increasing the number of bodies lifts total productivity only marginally. The downside of using more judges, of course, is the same peril always posed by great volume—inconsistent outcomes and rules. While these approaches and others might well be suitable solutions at the margins of our volume problem, none of them alone or collectively would address the Niagara of direct criminal appeals now washing over the Indiana Supreme Court. Conclusion When the Indianapolis Star endorsed amending the Indiana Constitution twelve years ago, it said: "[T]he state's highest court has become less a marketplace of reasoned, scholarly judgment than an assembly line review process. The consequences cannot be good for the law or for the people governed by it."^* Those consequences are with us again. November's constitutional amendment is the best solution. 3 1 . William Glaberson, CaseloadForcing Two-LevelSystemfor U. S. Appeals, N.Y. TIMES Mar. 14, 1999, at 1 (quoting Circuit Chief Judge Richard Posner). 32. See In re Amendment of Section (Rule) 809.23(3), Stats, 456 N.W.2d 783, 788 (Wis. 1990) (Abrahamson, J., dissenting) ("I have come to believe, as those judges [HoUoway, Barrett, and Baldock of the 10th Circuit] do, that any litigant who can point to a prior ruling of the court and can demonstrate that he or she is entitled to prevail under it should be able to do so as a matter ofjustice and fundamental fairness."). 33. As Judge Posner explains by comparing a group of nine to a group of eleven: The number of links required to connect all the members of a set grows exponentially with the size of the set, in accordance with the formula n(n-l)/2. Thus, 36 links are necessary to connect all the members of a set of 9, and 55 for a set of 1 1—^half again as many. But the reduction in the number ofopinion assignments per capita would be less than one-fifth (it would be 2/1 1). Richard Posner, The Federal Courts 14 (1985). 34. Proposition 2, INDIANAPOLIS STAR, Oct. 2, 1988, at F-2.