Indiana Law Review An Examination of the Indiana Supreme Court Docket, Dispositions, and Voting in 2000* Kevin W. Betz" P. Jason Stephenson*** In 2000, the Indiana Supreme Court substantially increased its productivity. The court issued the second most opinions in 2000 in the previous 10 years of this study. 1 Despite the increase in productivity, the court continued to be overwhelmed with mandatory criminal appeals. The court issued the lowest percentage of civil opinions in the 10 years of this study. Leading the charge for the court's increased productivity was ChiefJustice Shepard who authored the greatest number of opinions and twice as many civil opinions as any of the other justices. The Chief Justice also demonstrated his leadership by having the distinction of the justice most aligned with the other justices and being in the majority in 13 of 15 split decisions. Although the court's productivity is up, the constitutional change in its * The Tables presented in this Article are patterned after the annual statistics of the U.S. Supreme Court published in the HarvardLaw Review. An explanation ofthe origin ofthese Tables can be found at Louis Henkin, The Supreme Court, 1967 Term, 82 Harv. L. Rev. 63, 301 (1968). The Harvard Law Review granted permission for the use of these Tables by the Indiana Law Review this year; however, permission for any further reproduction of these Tables must be obtained from the Harvard Law Review. We thank Barnes & Thornburg for its gracious willingness to devote the time, energy, and resources of its law firm to allow a project such as this to be accomplished. As is appropriate, credit for the idea for this project goes to Chief Justice Shepard; but, of course, any errors or omissions belong to his former law clerk. We also thank WESTLAW® for its kind willingness to allow us free access to its computer resources and assistance in preparing these Tables. ** Attorney at Law, representing employees and professionals and practicing in the appellate area, 1997-present. Former Chief Counsel and Deputy Commissioner, Indiana Department of Environmental Management, 1995-97. Associate, Krieg DeVault Alexander & Capehart, Indianapolis, 1 990-95. Law clerk for ChiefJustice Randall T. Shepard, Indiana Supreme Court, 1988-90. B.A., 1982, Indiana University; M.S., 1 984, Northwestern University; J.D., 1988, Indiana University School of Law—Bloomington. *** Associate, Barnes & Thornburg, 1999-present; B.A., 1996, Taylor University; J.D., 1999, Indiana University School of Law-Indianapolis. 1. DISCRETIONARY TOTAL 98 (47%) 207 93(59%) 157 77(56%) 137 73 (55%) 133 76(62%) 122 48(41%) 116 71 (42%) 171 50(37%) 134 69(41%) 170 60(31%) 192 MANDATORY 1991 109(53%) 1992 64(41%) 1993 60 (44%) 1994 60 (45%) 1995 46 (38%) 1996 68 (59%) 1997 100 (58%) 1998 84 (63%) 1999 101(59%) 2000 132(69%) 542 INDIANA LAW REVIEW [Vol. 34:541 mandatory jurisdiction will still be welcome. Of 137 mandatory criminal appeals, over 83% were affirmed suggesting that the vast majority of the mandatory criminal appeals did not warrant review by the court of last resort.2 Evidence of the anticipated impact of the constitutional change in the court's jurisdiction may be seen in the drastic increase in the number of civil petitions to transfer the court granted. This suggests the court's docket will develop a more even balance ofcriminal and civil cases. The full brunt ofthis change will not occur until June 2001 when appeals initiated by the filing of a Notice of Appeal will become subject to the change in the court'sjurisdiction. This change will not only open the court to "people with ordinary family and business legal problems" but also permit the court to take a more significant role in providing more law-giving criminal opinions.3 The following is a description of the highlights from each table. Table A. In 2000, the supreme court issued 1 92 opinions that were authored by an individual justice. This is an increase from last year's 1 70 opinions authored by an individual justice. Ofthe 192 issued in 2000, only 49 were civil opinions and 143 were criminal. The court as a whole issued 71 per curiam opinions—70 civil and one criminal. Almost all of the 70 civil opinions were attorney discipline matters. In a change from the previous three years, ChiefJustice Shepard authored the greatest number ofopinions, 52. The ChiefJustice authored double the number of civil opinions of any other justice. Justice Boehm authored nearly as many total opinions with 48. The court continued to increase its number of dissents. In 1999 the court issued 38 dissents as compared to 42 in 2000. Justice Sullivan, as in the past, had the most total dissents with 13. Justice Dickson, also as in the past, was next with 12. Table B-L For civil cases, Chief Justice Shepard and Justice Rucker were the two justices most aligned at 89.8%. ChiefJustice Shepard and Justice Sullivan were next at 85.7%. Justices Dickson and Sullivan were the least aligned at 68.3%. Justice Rucker was the most aligned with other justices, and Justice Dickson was the least aligned. 2. The court fought this battle against an overwhelming number of mandatory criminal cases in 1988. The court is fighting the battle again. See Kevin W. Betz & Andrew T. Deibert, An Examination ofthe Indiana Supreme Court Docket, Dispositions, and Voting in 1996, 30 IND. L. Rev. 933 (1997); see also Randall T. Shepard, Changing the Constitutional Jurisdiction ofthe Indiana Supreme Court: Letting a Court ofLast Resort Act Like One, 63 IND. L.J. 669 (1988); Randall T. Shepard, Foreword: Indiana Law, the Supreme Court, and a New Decade, 24 IND. L. REV. 499 (1991). 3. Randall T. Shepard, Why Changing the Supreme Court's Mandatory Jurisdiction Is Critical to Lawyers and Clients, 33 IND. L. Rev. 1 101, 1 104 (2000). 200 1 ] INDIANA SUPREME COURT 543 Table B-2. For criminal cases, ChiefJustice Shepard and Justice Boehm, along with Chief Justice Shepard and Justice Rucker, are the most aligned pair of justices—each in agreement 95.8% of the time. Justices Sullivan and Dickson were the least aligned at 87.5%. As for criminal cases, Chief Justice Shepard was the most aligned with his fellow justices. Table B-3. For all cases, ChiefJustice Shepard and Justice Rucker were the two justices most aligned, at 94.5%. The two least aligned justices, also the same as last year, were Justices Sullivan and Dickson at 83.2%. Overall, Chief Justice Shepard was the most aligned with his fellow justices. Table C. The court's unanimity remained virtually identical for 1999 and 2000. The court was either unanimous or unanimous with concurrence in 87% of its opinions in both 1999 and 2000. This suggests that the presence ofa newjustice has had little impact upon the unanimity ofthe court. Table D. The number of3-2 split decisions continued to increase in 2000. The court split on fifteen decisions in 2000, as compared to nine in its 1999 term. Chief Justice Shepard was in the majority the most often, having been in the majority in 13 of the 15 split decisions. Table £-1. The court affirmed over 83% of the mandatory criminal appeals, which was also the majority of its docket. This is a compelling argument for why the court's jurisdiction needed to be changed. Obviously, with a change in jurisdiction, the court would not even have transferred the vast majority ofthese appeals. For comparisons sake, the court affirmed only 26.8% of the civil appeals and 58.3% of the nonmandatory criminal appeals. Now that the constitutional amendment has fully passed, the court's docket of mandatory criminal appeals should significantly dwindle in June 2001 when the court implements the amendment, and diminish completely in 2002. Table £-2. The court drastically increased the number of civil petitions it transferred, from 35 in 1999 to 61 in 2000, and the number ofcriminal petitions granted, from 22 in 1999 to 41 in 2000. This may, in part, reflect the court's anticipation ofeliminating many mandatory criminal appeals because ofthe new constitutional amendment. A civil petition to transfer stood about a 1 7% chance of being granted, and a criminal petition stood about a 9% chance ofbeing granted. Juvenile petitions face the least chance of being granted at 5.4%. Table F. The court continues its interest in the Indiana Constitution with 28 opinions involving such issues. The number of attorney discipline cases reviewed, ofwhich there were only 36 last year, returned to past ranges this year at 60. 544 INDIANA LAW REVIEW [Vol. 34:541 TABLE A Opinions* OPINIONS OF COURT" CONCURRENCES6 DISSENTS'1 Criminal Civil Total Criminal Civil Total Criminal Civil Total Shepard, C.J. 28 24 52 1 1 1 2 3 Dickson, J.e 34 2 36 3 3 6 3 9 12 Sullivan, J. c 25 8 33 6 2 8 7 6 13 Boehm, J.c 36 12 48 3 3 6 3 4 7 Rucker, J.' 20 3 23 2 2 3 4 7 Per Curiam 1 70 71 Total 144 119 263 15 8 23 17 24 42 " These are opinions and votes on opinions by each justice and in per curiam in the 2000 term. The Indiana Supreme Court is unique because it is the only supreme court to assign each case to a justice by a consensus method. Cases are distributed by a consensus ofthe justices in the majority on each case either by volunteering or nominating writers. The chiefjustice does not have any power to control the assignments other than as a member ofthe majority. See Melinda Gann Hall, Opinion Assignment Procedures and Conference Practices in State Supreme Courts, 73 JUDICATURE 209, 210 (1990). The order of discussion and voting is started by the most junior member of the court and follows reverse seniority. See id. b This is only a counting of full opinions written by each justice. Plurality opinions that announce the judgment of the court are counted as opinions of the court. It includes opinions on civil, criminal, and original actions. Also, the following three miscellaneous cases are not included in the table: Ind. Lawrence Bank v. PSB Credit Serv., Inc., 724 N.E.2d 1091 (Ind 2000) (dissent from denial of transfer); Davenport v. State, 696 N.E.2d 870 (Ind. 1998) (denial of petition to reinstate convictions); Lenhardt Tool & Die Co. v. Lumpe, 722 N.E.2d 824 (Ind. 2000) (interlocutory appeal of denial of summary judgement). c This category includes both written concurrences, joining in written concurrence, and votes to concur in result only. d This category includes both written dissents and votes to dissent without opinion. Opinions concurring in part and dissenting in part or opinions concurring in part only and differing on another issue are counted as dissents. * Justices declined to participate in the following non-disciplinary cases: Justice Sullivan: H.B. v. Elkhart County Div. ofFamily and Children, 735 N.E.2d 222 (Ind. 2000); Justice Boehm: Anthem Ins. Co. v. Tenet Healthcare Corp., 730 N.E.2d 1227 (Ind. 2000); Ind. Univ. Med. Cen. v. Logan, 728 N.E.2d 855 (Ind. 2000); Justice Dickson: Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450 (Ind. 2000); Justice Rucker: Coleman v. State, 741 N.E.2d 697 (Ind. 2000); Troxel v. Troxel, 737 N.E.2d 745 (Ind. 2000); United States Gypsum, Inc. v. Ind. Gas Co., Inc., 735 N.E.2d 790 (Ind. 2000); DimitrorTv. Dimitroff, 735 N.E.2d 238 (Ind. 2000); In re N.B., 735 N.E.2d 238 (Ind. 2000); Plesha v. Edmonds, 735 N.E.2d 235 (Ind. 2000); In re Malone, 735 N.E.2d 234 (Ind. 2000); Snyder v. Ind. Dep't ofRevenue, 735 N.E.2d 233 (Ind. 2000); Huddleston v. Div. ofFamily and Children, 735 N.E.2d 233 (Ind. 2000); Perry-Worth Concerned Citizens v. Bd. ofComm'rs of Boone County, 735 N.E.2d 231 (Ind. 2000); Smith v. Tippecanoe County Office of Family and Children, 735 N.E.2d 231 (Ind. 2000); Everett v. State, 735 N.E.2d 229 (Ind. 2000); Columbia Club v. American Fletcher Realty Corp., 735 N.E.2d 229 (Ind. 2000); Gomolisky v. Davis, 735 N.E.2d 228 (Ind. 2000); St. Margaret Mercy Healthcare Ctrs. v. Lake County, 735 N.E.2d 227 (Ind. 2000); Foster v. Evergreen Healthcare, Inc., 735 N.E.2d 223 (Ind. 2000); Hutchinson v. Old Ind. Ltd. Liab. Co., 735 N.E.2d 223 (Ind. 2000); Guthrie v. State, 735 N.E.2d 220 (Ind. 2000); Bagnall v. Town of Beverly Shores, 726 N.E.2d 782 (Ind. 2000). 200 1 ] INDIANA SUPREME COURT 545 TABLE B-l Voting Alignments for Civil Cases' Not Including Judicial or Attorney Discipline Cases Shepard Dickson Sullivan Boehm Rucker 31 35 35 35 Shepard, CJ. S D ... 31 1 36 35 35 N 41 42 41 39 P 75.6% 85.7% 85.4% 89.8% 31 28 31 29 Dickson, J. S D 31 ... 28 2 33 1 30 N 41 41 40 38 P 75.6% 68.3% 82.5% 78.9% O 35 28 32 32 Sullivan, J. S D 1 36 28 _ 1 33 1 33 N 42 41 41 39 f> 85.7% 68.3% 80.5% 84.6% 35 31 32 32 Boehm, s D 35 2 33 1 33 32 J. N 41 40 41 38 P 85.4% 82.5% 80.5% 84.2% 35 29 32 32 S 1 1 Rucker, D 35 30 33 32 — J. N 39 38 39 38 P.. 89 8% 78,9% 84.6% 84,2% r This Table records the number of times that one justice voted with another in full-opinion decisions, including per curiam, for only civil cases. For example, in the top set of numbers for Chief Justice Shepard, 3 1 is the number oftimes ChiefJustice Shepard and Justice Dickson agreed in a full majority opinion in a civil case. Twojustices are considered to have agreed whenever theyjoined the same opinion, as indicated by either the reporter or the explicit statement ofajustice in the body ofhis or her own opinion. The Table does not treat two justices as having agreed if they did not join the same opinion, even if they agreed only in the result of the case or wrote separate opinions revealing little philosophical disagreement. "O" represents the number ofdecisions in which the twojustices agreed in opinions ofthe court or opinions announcing the judgment of the court. "S" represents the number of decisions in which the two justices agreed in separate opinions, including agreements in both concurrences and dissents. "D" represents the number of decisions in which the two justices agreed in either a majority, dissenting, or concurring opinion. "N" represents the number ofdecisions in which both justices participated and thus the number of opportunities for agreement. "P" represents the percentage of decisions in which one justice agreed with another justice, calculated by dividing "D" by "N." 546 INDIANA LAW REVIEW [Vol. 34:541 TABLE B-2 Voting Alignments for Criminal Cases Not Including Judicial or Attorney Discipline Cases1 Shepard Dickson Sullivan Boehm Rucker 136 131 138 138 Shepard, C.J. S D — 136 131 138 138 N 144 144 144 144 P 94.4% 91.0% 95.8% 95.8% 136 125 132 132 Dickson, J. S D 136 ... 1 126 2 134 132 N 144 144 144 144 P 94.4% 87.5% 93.1% 91.7 131 125 127 129 Sullivan, J. S D 131 1 126 ... 127 2 131 N 144 144 144 144 P 91.0% 87.5% 88.2% 90.9% 138 132 127 134 Boehm, J. S D 138 2 134 127 1 135 N 144 144 144 144 P OS «•/« 91 1% 88 2% 93 8% 138 132 129 134 s 2 1 Rucker, D 138 132 131 135 — J. N 144 144 144 144 P 95.8% 91.7% 90.9% 93.8% 8 This Table records the number of times that one justice voted with another in full-opinion decisions, including per curiam, for only criminal cases. For example, in the top set of numbers for Chief Justice Shepard, 1 36 is the number oftimes ChiefJustice Shepard and Justice Dickson agreed in a full majority opinion in a criminal case. Twojustices are considered to have agreed whenever theyjoined the same opinion, as indicated by either the reporter or the explicit statement of a justice in the body of his or her own opinion. The Table does not treat two justices as having agreed ifthey did notjoin the same opinion, even ifthey agreed only in the result of the case or wrote separate opinions revealing little philosophical disagreement. "O" represents the number ofdecisions in which the twojustices agreed in opinions ofthe court or opinions announcing the judgment of the court. "S" represents the number of decisions in which the two justices agreed in separate opinions, including agreements in both concurrences and dissents. "D" represents the number of decisions in which the two justices agreed in either a majority, dissenting, or concurring opinion. "N" represents the number ofdecisions in which both justices participated and thus the number of opportunities for agreement. "P" represents the percentage of decisions in which one justice agreed with another justice, calculated by dividing "D" by "N." 200 1 ] INDIANA SUPREME COURT 547 TABLE B-3 Voting Alignments for All Cases Not Including Judicial or Attorney Discipline Cases" Shepard Dickson Sullivan Boehm Rucker O 167 166 173 173 Shepard, S D 167 1 167 173 173 C.J. N 185 186 185 183 P 90.3% 89.8% 93.5 % 94.5 % O 167 153 163 161 Dickson, J. S D 167 1 154 4 167 1 162 N 185 185 184 182 p 90 3 % 83 2% 90 8 % 89 % O 166 153 159 161 Sullivan, J. S D 1 167 1 154 1 160 3 164 N 186 185 185 183 P 89 8% 83 2% 86 5% 89 6 % 173 163 159 166 S 4 1 1 Boehm, D 173 167 160 — 167 J. N 185 184 185 182 P 93 5% 90 8% 86 5% 91 8% O ' 173 161 161 166 S 1 3 1 Rucker, D 173 162 164 167 — J. N 183 182 183 182 P 94.5% 89.0% 89.6 % 91.8% h This Table records the number of times that one justice voted with another in full-opinion decisions, including per curiam, for all cases. For example, in the top set ofnumbers for ChiefJustice Shepard, 167 is the total number oftimes ChiefJustice Shepard and Justice Dickson agreed in all full majority opinions written by the court in 2000. Two justices are considered to have agreed whenever they joined the same opinion, as indicated by either the reporter or the explicit statement of ajustice in the body of his or her own opinion. The Table does not treat two justices as having agreed if they did notjoin the same opinion, even if they agreed only in the result ofthe case or wrote separate opinions revealing little philosophical disagreement. "O" represents the number ofdecisions in which the twojustices agreed in opinions ofthe court or opinions announcing the judgment of the court. "S" represents the number of decisions in which the two justices agreed in separate opinions, including agreements in both concurrences and dissents. "D" represents the number of decisions in which the two justices agreed in either a majority, dissenting, or concurring opinion. "N" represents the number ofdecisions in which both justices participated and thus the number of opportunities for agreement. "P" represents the percentage of decisions in which one justice agreed with another justice, calculated by dividing "D" by "N." 548 INDIANA LAW REVIEW [Vol. 34:541 TABLE C Unanimity Not Including Judicial or attorney Discipline Cases1 Unanimous Opinions Unanimous1 With Concurrence1 With Dissent Total Criminal Civil Total Criminal Civil Total Criminal Civil Total 121 96 217(81.3%) 12 5 17(6.4%) 13 20 33(12.4%) 267 ' This Table tracks the number and percent ofunanimous opinions among all opinions written. If, for example, only four justices participate and all concur, it is still considered unanimous. It also tracks the percent of overall opinions with concurrence and overall opinions with dissent. 1 A decision is considered unanimous only when all justices participating in the case voted to concur in the court's opinion as well as its judgment. When one or more justices concurred in the result but not in the opinion, the case is not considered unanimous. k A decision is listed in this column if one or more justices concurred in the result but not in the opinion of the court or wrote a concurrence, and there were no dissents. 200 1 ] INDIANA SUPREME COURT 549 TABLE D 3-2 Decisions1 Justices Constituting the Majority Number of Opinions" 1 . Shepard, C.J., Dickson, J., Boehm, J. 3 2. Shepard, C.J., Boehm, J, Rucker, J. 2 3. Shepard, C.J., Dickson, J., Sullivan, J. 2 4. Shepard, C.J., Sullivan, J., Boehm, J. 1 5. Shepard, C.J., Sullivan, J., Rucker, J. 4 6. Shepard, C.J., Dickson, J., Rucker, J. 1 7. Dickson, J., Boehm, J., Rucker, J. 1 8. Boehm, J., Sullivan, J., Rucker, J. 1 Total" 15 1 This Table concerns only decisions rendered by full opinion. An opinion is counted as a 3-2 decision if two justices voted to decide the case in a manner different from that of the majority of the court. m This column lists the number oftimes each three-justice group constituted the majority in a 3-2 decision. n The 2000 term's 3-2 decisions were: 1. Shepard, C.J , Dickson, J , Boehm, J.: Boggs v. Tri-State Radiology, Inc, 730 N.E.2d 692 (Ind. 2000) (Boehm, J.); Dunlop v. State, 724 N.E.2d 592 (Ind. 2000) (Dickson, J); Bacher v. State, 722 N.E.2d 799 (Ind. 2000) (Dickson, J.). 2. Shepard, C.J., Boehm, J., Rucker, J.: Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000) (Rucker, J.); Baxter v. State, 727 N.E.2d 429 (Ind. 2000) (Boehm, J ) 3. Shepard, C.J., Dickson, J., Sullivan, J.: Azania v. State, 738N.E.2d 248 (Ind. 2000) (Shepard, C.J.); In re Bradburn, 739 N.E.2d 1074 (Ind. 2000) (Shepard, C.J.). 4. Shepard, C.J., Sullivan, J., Boehm, J.: Mcintosh v. Melroe Co., 729 N.E.2d 972 (Ind. 2000) (Boehm, J). 5. Shepard, C.J., Sullivan, J., Rucker, J : Oman v. State, 737 N.E.2d 1131 (Ind. 2000); Ellis v. State, 736 N.E.2d 731 (Ind. 2000) (Shepard, C.J.); City ofGary v. Ind. Bell Tel. Co., 732 N.E.2d 149 (Ind. 2000) (Sullivan, J); Midwest Security Life Ins. Co. v. Stroup, 730 N.E.2d 163 (Ind. 2000) (Shepard, C.J.). 6. Shepard, C.J., Dickson, J., Rucker, J.: Ind. Dep't of State Revenue v. Farm Credit Serv. of Mid- Am., 734 N.E.2d 551 (Ind. 2000) (Shepard, C.J.). 7. Dickson, J., Boehm, J., Rucker, J.: Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285 (Ind. 2000) (Dickson, J.). 8. Boehm, J., Sullivan, J., Rucker, J.: In re Miller, 730 N.E.2d ! 7! (Ind 2000) (per curiam). 550 INDIANA LAW REVIEW [Vol. 34:541 TABLE E-l Disposition of Cases Reviewed by Transfer and Direct Appeals Reversed or Vacated p Affirmed Total Civil Appeals Accepted for Transfer Direct Civil Appeals Criminal Appeals Accepted for Transfer Direct Criminal Appeals 32(73.2%) 5(41.7%) 23 (16.8%) 1 1 (26.8%) 7 (58.3%) 1 14 (83.2%) 43 12 137 60(31.3%) 132(68.8%) 192'Total ° Direct criminal appeals are cases in which the trial court imposed a sentence of greater than 50 years or a sentence of death. See Ind. Const, art. VII, § 4 (amended 2000). Thus, direct criminal appeals are those directly from the trial court. A civil appeal may also be direct from the trial court pursuant to Indiana appellate rule 4(A) and the Rules ofProcedure for Original Actions. All other Indiana Supreme Court opinions are accepted for transfer from the Indiana Court of Appeals. See Ind. Appellate Rule 1 1(B). p Generally, the term "vacate" is used by the Indiana Supreme Court when it is reviewing a court of appeals opinion, and the term "reverse" is used when the court overrules a trial court decision. A point to consider in reviewing this Table is that the court technically "vacates" every court of appeals opinion that is accepted for transfer, but may only disagree with a small portion ofthe reasoning and still agree with the result. See Ind. App. R. 58(A). As a practical matter, "reverse" or "vacate" simply represents any action by the court that does not affirm the trial court or court of appeals opinion.