Indiana Law Review An Examination of the Indiana Supreme Court Docket, Dispositions, and Voting in 2001* Kevin W. Betz** P. Jason Stephenson**' Even though mandatory criminal appeals still overwhelmingly dominated the Indiana Supreme Court' s docket in 200 1 , 4he constitutional change that occurred in 2001 in the court's mandatory criminal appeals began to show its effects with far less consensus and unanimity in the court's opinions.^ It was expected that * 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 & Thomburg 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. ** Sutherlin & Betz, representing employees and professionals and practicing in the appellate area, 1 997-present. Former Chief Counsel and Deputy Commissioner, Indiana Department of Environmental Management, 1995-97. Associate, Krieg DeVault Alexander & Capehart, Indianapolis, 1990-95. Judicial Clerk for Chief Justice Randall T. Shepard, Indiana Supreme Court, 1988-90. B.A., 1982, Indiana University; M.S., 1984, Northwestern University; J.D., 1988, Indiana University School of Law—Bloomington. ** Associate, Barnes & Thornburg, 1 999-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 59(38%) 156 2. Previously, article VII, section 4 of the Indiana Constitution provided that, in criminal cases, all appeals fromjudgments imposing a sentence ofdeath, life imprisonment or imprisonment for a term greater than fifty years was to be taken directly to the supreme court. Because the Indiana General Assembly has increased the term of imprisonment for many crimes, the court's docket was filling with criminal appeals falling within the scope of article VII ,section 4, notwithstanding that 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%) 2001 97 (62%) 1118 INDIANA LAW REVIEW [Vol. 35:1117 this change would open the court to "people with ordinary family and business legal problems" and open the court to take a more significant role in providing law-giving criminal opinions.^ Apparently, the change in the court's jurisdiction also has had another, unintended consequence—the consensus among the justices has decreased sharply. The number of split decisions by the court nearly doubled this year. The court issued only nine split decisions in 1999, 15 split decisions in 2000 but 28 split decisions in 2001. Among the split decisions were two plurality decisions, both involving civil issues."* Two other split appeals garnered majorities only because one or more justices voted to concur in the result only.^ Overall, the justices were also less aligned on both civil and criminal appeals as compared to the 2000, 1999 or 1998 terms. This jurisdictional change to the court's docket occurred in June 2001 . The 2002 docket will have a full year of its new jurisdiction and will test whether the decreased unanimity is a result of the issues presented to the court. The cause for the lack of consensus is not immediately clear. Some had hoped that the change in the court's jurisdiction would bring more civil cases to its docket. If this had occurred, the logical result would have been less agreement because historically the justices have disagreed on civil cases more than on criminal cases. However, the court did not decide more civil cases in 2001—^the court issued the same number of civil opinions in 2001 as it did in 2000 (excluding per curium opinions) and actually issued more civil opinions in 1999. The more likely cause is the court's ability to accept more criminal appeals with the potential for significant legal precedent, rather than the compulsory criminal appeals with little or no precedential value. Presumably, the more significant legal precedent brings less willingness to compromise by the justices because of the long-term impacts of the decision. The number of dissents in criminal opinions also increased dramatically in 2001 to 30. In 1999 and 2000, the court had only 17 dissents in criminal cases. The following is a description of the highlights from each table: Table A. In 2001 , the supreme court issued 21 1 opinions that were authored by an individual justice. This is a negligible increase from last year's 192 opinions authored by an individual justice. Ofthe 21 1 issued in 2001, only 49 were civil many ofthese cases did not involve significant legal questions as evidenced by the high percentage ofdirect appeal judgments affirmed. In June 2001 , the court's mandatoryjurisdiction over criminal appeals changed because of an amendment to Indiana's Constitution. Article 7, section 4 now provides a right of direct appeal to the court only for judgements imposing a penalty of death. 3. Randall T. Shepard, Why Changing the Supreme Court's Mandatory Jurisdiction Is Critical to Lawyers and Clients, 33 IND. L. Rev. 1 1 1 , 1 1 04 (200 1 ). 4. See City Chapel Evangelical Free, Inc. v. City of South Bend, 744 N.E.2d 443 (Ind. 2001); Degussa Corp. v. Mullens, 744 N.E.2d 407 (Ind. 2001). 5. Osborne v. State, 754N.E.2d 916 (Ind. 200 1 ) (Shepard, C.J., Boehm, J., Dickson, J., all concurring in result); Sears Roebuck and Co. v. Manuilov, 742 N.E.2d 453 (Ind. 2001) (Sullivan, J., concurring in result; Shepard, C.J. & Boehm, J., dissenting). 2002] INDIANA SUPREME COURT 1119 opinions—^the same number of civil opinions issued in 2000. Justice Boehm authored the most opinions at 48. Those who hoped the change in the court's mandatoryjurisdiction over criminal appeals would allow more civil cases to be heard by the court were disappointed in 2001 , but it is still too early in the court's new docket. A sudden increase in civil appeals granted transfer was not expected since the court still must clear its docket ofthe mandatory criminal appeals that came before it prior to June 2001. Next year should be a watershed year in determining the real impact of the docket change in the court's mandatory jurisdiction. The court as a whole issued 24 per curiam opinions—23 civil and 1 criminal. Almost all 23 civil opinions were attorney discipline matters. In 2000, this article reported that the court had issued 71 per curiam opinions. That number has declined this year because the court is issuing more attorney discipline decisions as orders rather than per curiam opinions. When considering both per curiam decisions and orders involving the discipline of attorneys, the court's number of cases in this area has remained about the same. Continuing the trend of increases in dissents identified in last year's article, the court again increased its dissents to 56. For comparison purposes, the court issued 42 dissents in 2000 and 38 dissents in 1999. In an about face from previous years. Justice Sullivan had the least total dissents with 6. In the previous four years. Justice Sullivan led the court with the number of dissents. This year. Justice Dickson drafted the most dissents with a total of22. Last year. Justice Sullivan had the most dissents with 13. Table B-1. For civil cases, Chief Justice Shepard and Justice Sullivan were the two justices most aligned at 85.4%. Chief Justice Shepard and Justice Boehm were next at 82.5%. Justices Dickson and Boehm were the least aligned at 67.5%. Chief Justice Shepard was the most aligned with other justices, and Justice Dickson was the least aligned. Table B-2. For criminal cases. Chief Justice Shepard and Justice Sullivan are the most aligned pair of justices—in agreement 92.1% of the time. Justices Sullivan and Dickson were the least aligned at 78.4%o. As for criminal cases. Justice Shepard was the most aligned with his fellow justices. Table B-3. For all cases. Chief Justice Shepard and Justice Sullivan were the two justices most aligned at 90.5%. The two least aligned justices, the same as last year, were Justices Sullivan and Dickson at 76.1%. Overall, ChiefJustice Shepard was the most aligned with his fellowjustices, and Justice Dickson was the least aligned. Table C. Echoing the trend toward a lack of consensus among the court's justices, unanimity declined in 2001 . The court was unanimous in 69.1% of its decisions in 2001, as compared to 81.3% in 2000 and 72.8% in 1999. The number of dissents increased in 2001 to 18.5% from 12.4%) in 2000 and 1999. 1120 INDIANA LAW REVIEW [Vol. 35:1 1 17 Table D. Table D, more than any other table, demonstrates the increased divisions among the justices. The number of3-2 split decisions doubled in 2001 from 2000. Last year, the court issued 1 5 split decisions and it issued only nine the year before. This year, however, the court issued 27 split decisions. The authors have counted two plurality decisions as split decisions.^ Neither ofthese cases, strictly speaking, are 3-2 decisions, but they certainly fall into the spirit of 3-2 decisions in demonstrating issues on which the court is deeply divided. The opinion in City Chapel, for example, spawned three separate dissenting opinions. Chief Justice Shepard was by far in the majority in the most number of split opinions. He was in the majority in 21 ofthe 27 split opinions. The next closest justice was in the majority in 14 such opinions. Table E-1. The court affirmed over 77% of the mandatory criminal appeals, which were also still the majority of its docket. Overall, the court affirmed cases 55.8% ofthe time. This high percentage was driven by the large percentage of mandatory criminal appeals affirmed. In contrast, civil appeals were affirmed only 14.7% of the time and nonmandatory criminal appeals were affirmed only 28% ofthe time. The large percentage ofcases affirmed by the court is likely to decline because ofthe change in the court'sjurisdiction over mandatory criminal appeals, effective in June 2001 , which will bring more discretionary criminal and civil issues on which the court has, historically, lacked consensus. Table E-2. Expectations were high that the change in the court's mandatory jurisdiction would lead to an increase in the number of civil petitions granted transfer. The court's jurisdiction changed in June 2001. Nonetheless, the number of civil petitions granted transfer by the court declined from 61 in 2000 to only 34 in 2001. This change may also reflect the decline in petitions to transfer filed in 2001 . During 2000, 825 petitions to transfer were filed but this year only 740 were filed. A civil petition to transfer stood about a 12.4% chance of being granted, and a criminal petition stood about a 6.6% chance of being granted. No juvenile petitions were granted transfer in 2001 . Table F. The court continues its vigorous interest in the Indiana Constitution with 26 opinions involving such issues. A review of these cases demonstrates that the court is especially interested in the double jeopardy provision of the Indiana Constitution. The number ofattorney discipline cases listed in this table (23) appears to have drastically declined from the number of such cases last year (60). This decline is misleading. The court has begun to decide more attorney discipline cases in orders rather than per curiam opinions. The authors have determined that only per curiam opinions will be reflected in Table F. When accounting for the number ofattorney discipline cases decided by order (53), the number of attorney discipline cases remains about the same as last year. The court also decided 1 death penalty cases, affirming eight and reversing two such cases. 6. See City Chapel Evangelical Free, Inc. , 744 N.E.2d at 443; Degussa Corp., 744 N.E.2d at 407. 2002] INDIANA SUPREME COURT 1121 TABLE A Opinions* OPINIONS OF COURT'' CONCURRENCES^ DISSENTS'* Criminal Civil Total Criminal Civil Total Criminal Civil Total Shepard, C.J. 32 7 39 2 1 3 2 7 9 Dickson, J.*" 17 7 24 4 2 6 13 9 22 Sullivan, J." 36 11 47 5 3 8 4 2 6 Boehm, J.*^ 32 16 48 10 4 14 7 4 11 Rucker, J.*-' 21 8 29 5 5 10 4 4 8 Per Curiam 1 23 24 Total 139 72 211 26 15 41 30 26 56 " These are opinions and votes on opinions by each justice and in per curiam in the 2001 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 of the 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 of the majority. See Melinda Gann Hall, Opinion Assignment Procedures and Conference Practices in State Supreme Courts, 73 JUDICATURE 209 (1990). The order of discussion and voting is started by the most junior member of the court and follows reverse seniority. See id. at 210. ^ This is only a counting of fiiU 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: Stanrail Corp. v. Unemployment Ins. Rev. Bd., 749 N.E.2d 483 (Ind. 2001) (dissent from denial of transfer); In re Becker, 743 N.E.2d 1115 (Ind. 2001) (dissent from order approving statement ofcircumstances and conditional agreement for discipline); In re Shorter-Pifer, 743 N.E.2d 115 (Ind. 2001) (dissent from order finding misconduct and imposing discipline). " This category includes both written concurrences, joining in written concurrence and votes to concur in result only. •^ 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 Boehm (State Bd. ofTax Comm'rs v. Town of St. John, 751 N.E.2d 657 (Ind. 2001)); Justice Rucker (Rheem Mfg. Co. v. Phelps Heating& Air Conditioning, Inc., 746N.E.2d941 (Ind. 2001); DegussaCorp. v. Mullens, 744N.E.2d407 (Ind. 2001)); Justice Sullivan (Forney v. State, 742 N.E.2d 934 (Ind. 2001); State Employees Appeal Comm'n v. Bishop, 741 N.E.2d 1229 (Ind. 2001); Rogers v. R.J. Reynolds Tobacco Co., 745 N.E.2d 793 (Ind. 2001)). 1122 INDIANA LAW REVIEW [Vol. 35:1117 TABLE B-1 Voting Alignments for Civil Cases*^ Not Including Judicial or Attorney Discipline Cases Shepard Dickson Sullivan Boehm Rucker O 27 33 31 28 Shepard, C.J. s D ... 3 30 2 35 2 33 1 29 N 42 41 40 40 P 1\A% 85.4% 82.5% 72.5% 27 28 24 28 Dickson, J. s D 3 30 28 3 27 4 32 N 42 41 40 40 P 71.4% 68.3% 67 5% 80.0% O 33 28 29 27 Sullivan, J. s D 2 35 28 1 30 1 28 N 41 41 39 39 P 85.4% 68.3% 76.9% 71.8% 31 24 29 26 Boehm, S D 2 33 3 27 1 30 3 29 J. N 40 40 39 . 38 P 82.5% 67.5% 76.9% 76.3% 28 28 27 26 S I 4 1 3 Rucker, D 29 32 28 29 ... J. N 40 40 39 38 P n.m 80,0% 71,8% 7().3% ^ This Table records the number of times that one justice voted with another in ftill-opinion decisions, including per curiam, for only civil cases. For example, in the top set of numbers for Chief Justice Shepard, 27 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." 2002] INDIANA SUPREME COURT 1 1 23 TABLE B-2 Voting Alignments FOR Criminal Cases Not Including Judicial or Attorney Discipline Cases* Shepard Dickson Sullivan Boehm Rucker O 116 125 119 124 Shepard, C.J. S D ,, 1 117 3 128 1 120 124 N 140 139 140 140 P 83.6% 92.1% 85.7% 88.6% 116 109 113 HI Dickson, J. s D 1 117 _-_ 109 5 118 1 112 N 140 139 140 140 P 83.6% 78.4% 84.3% 80.0% 125 109 112 119 Sullivan, J. S D 3 128 109 2 114 2 121 N 139 139 139 139 P 92.1% 78.4% 82.0% 87.1% 119 113 112 114 Boehm, J. S D 1 120 5 118 2 114 . 2 116 N 140 140 140 140 P 8-5 7% 84 3% 8ft 0% 82.9% 124 111 119 114 S 1 2 2 Rucker, D 124 112 121 116 — J. N 140 140 139 140 P 88.6% 80.0% 87.1% 82.9% ^ 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 16 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 they joined 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 if they 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 two justices 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." 1124 INDIANA LAW REVIEW [Vol. 35:1117 TABLE B-3 Voting Alignments for All Cases Not Including Judicial or Attorney Discipline Cases'" Shepard Dickson Sullivan Boehm Rucker O 143 158 150 152 Shepard, S D 4 147 5 163 3 153 1 153 C.J. N 182 180 180 180 P 80.7% 90.5% 85.0 % 85.0 % O 143 137 137 139 Dickson, J. S D 4 147 137 8 145 5 144 N 182 180 180 180 P 80 7% 76 1% 80 5 % 80 % 158 137 141 146 Sullivan, J. s D 5 163 137 3 144 3 149 N 179 180 178 178 P 90 5% 76 1 % 80 9 % 83 7% O 150 137 141 140 S 3 8 3 5 Boehm, D 153 145 144 — 145 J. N 180 180 178 178 P 85 0% 80 5% 80 9% 81 5% 152 139 146 140 S 1 5 3 5 Rucker, D 153 144 148 145 . — J. N 180 180 178 178 P 85.0% 80.0% 83.7 % 81.5% ^ 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, 143 is the total number oftimes ChiefJustice Shepard and Justice Dickson agreed in all full majority opinions written by the court in 2001. 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 not join 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." 2002] INDIANA SUPREME COURT 11 25 TABLE C Unanimity Not Including Judicial or Attorney Discipline Cases' Unanimous Opinions Unanimous^ with Concurrence'' with Dissent Total Criminal Civil Total Criminal Civil Total Criminal Civil Total 100 23 123(69.1%) 17 5 22(12.4%) 18 15 33(18.5%) 178 ' This Table tracks the number and percent of unanimous 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. ' 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. ^ 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. 1126 INDIANA LAW REVIEW [Vol. 35:1 117 TABLE D 3-2 Decisions' Justices Constituting the Majority Number of Opinions" 1 . Shepard, C.J., Dickson, J., Boehm, J. 3 2. Shepard, C.J. . Dickson, J, Sullivan, J. 4 3. Shepard, C.J., Sullivan, J., Boehm, J. 5 4. Shepard, C.J, Sullivan, J, Rucker, J. 8 5. Dickson, J, Boehm, J, Rucker, J. 2 6. Boehm, J., Sullivan, J., Rucker, J. 2 7. Sullivan, J, Rucker, J. 1 8. Dickson, J., Rucker, J. 2 9. Shepard, C.J., Sullivan, J. 1 Total" 28 ' 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. *" This column lists the number of times each three-justice group constituted the majority in a 3-2 decision. " The 2001 term's 3-2 decisions were: 1 . Shepard, C. J., Dickson, J., Boehm, J.: Sanchez v. State, 749 N.E.2d 509 (Ind. 2001) (Boehm, J.); Query v. State, 745 N.E.2d 769 (Ind. 2001) (Boehm, J); Hughes v. City ofGary, 741 N.E.2d 1 168 (Ind. 2001) (Shepard, C.J). 2. Shepard, C.J., Dickson, J., Sullivan, J.: /n re Capper, 757 N.E.2d 138 (Ind. 2001) (per curium); Vitek V. State, 750 N.E.2d 346 (Ind. 2001) (Sullivan, J.); Zimmerman v. State, 750 N.E.2d 337 (Ind. 2001) (Dickson, J.); Daniels v. State, 741 N.E.2d 1 177 (Ind. 2001) (Shepard, C.J.). 3. Shepard, C.J., Sullivan, J., Boehm, J.: Mangold ex rel. Mangold v. Dep't of Natural Res., 756 N.E.2d 970 (Ind. 2001) (Rucker, J); Hollowell v. State, 753 N.E.2d 612 (Ind. 2001) (Sullivan, J); Fleetwood Enters., Inc. v. Progressive N. Ins. Co., 749 N.E.2d 492 (Ind. 2001) (Boehm, J); Progressive Ins. Co. v, Gen. Motors Corp., 749 N.E.2d 484 (Ind. 2001) (Boehm, J); Durham ex rel. Estate of Wade v. U-Haul Int'l, 745 N.E.2d 755 (Ind. 2001) (Boehm, J). 4. Shepard, C.J., Sullivan, J., Rucker, J.: Francis v. State, 758 N.E.2d 528 (Ind. 2001) (Rucker, J); Randolph v. State, 755 N.E.2d 572 (Ind. 2001) (Rucker, J); Miller v. State, 753 N.E.2d 1284 (Ind. 2001) (Sullivan, J.); Wallace v. State, 753 N.E.2d 568 (Ind. 200 1 ) (Rucker, J); Wadsworth v. State, 750 N.E.2d 774 (Ind. 2001) (Shepard, C.J); Holsinger v. State, 750 N.E.2d 354 (Ind. 2001) (Sullivan, J); Pennycuff v. State, 745 N.E.2d 804 (Ind. 2001) (Shepard, C J); Noble County v. Rogers, 745 N.E.2d 194 (Ind. 2001) (Sullivan, J.). 5. Dickson, J., Boehm, J., Rucker, J.: Jiosa v. State, 755 N.E.2d 605 (Ind. 2001) (Boehm, J.); Segura v. State, 749 N.E.2d 496 (Ind. 2001) (Boehm, J.). 6. Boehm, J., Sullivan, J., Rucker, J.: Ashabraner v. Bowers, 753 N.E.2d 662 (Ind. 2001) (Sullivan, J.); In re Harshey, 740 N.E.2d 851 (Ind. 2001) (per curiam). 7. Sullivan, J., Rucker, J.: Osborne v. State, 754 N.E.2d 916 (Ind. 2001) (Rucker, J.) (Shepard, C.J., Boehm, J., Dickson, J., concurring in result). 8. Dickson, J., Rucker, J.; City Chapel Evangelical Free Inc. v. City of South Bend, 744 N.E.2d 443 (Ind. 2001 ) (Dickson, J.) (Shepard, C.J., Sullivan, J., and Boehm, J., all dissenting with separate opinion); Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453 (Ind. 2001) (Dickson, J.) (Sullivan, J. concurring in result; Shepard, C.J. and Boehm, J., dissenting). 9. Shepard, C.J., Sullivan, J.: Degussa Corp. v. Mullens, 744 N.E.2d 407 (Ind. 2001) (Sullivan, J.) (plurality decision: Boehm, J., Dickson, J., dissenting). 2002] INDIANA SUPREME COURT 1127 TABLE E-1 Disposition of Cases Reviewed by Transfer AND Direct Appeals" Reversed or Vacated '' Affirmed Total Civil Appeals Accepted for Transfer Direct Civil Appeals Criminal Appeals Accepted for Transfer Direct Criminal Appeals 29 (85.3%) 5 (14.7%) 34 18(72%) 7 (28%) 25 22 (22.7%) 75 (77.3%) 97 Total 69 (44.2%) 87 (55.8%) 156" Direct criminal appeals are cases in which the trial court imposed a death sentence. See IND. Const, art. VII, § 4. Thus, direct criminal appeals are those directly from the trial court. A civil appeal may also be direct from the trial court. See Ind. Appellate Rule 56 and also pursuant to Rules of Procedure for Original Actions. All other Indiana Supreme Court opinions are accepted for transfer from the Indiana Court of Appeals. See Ind. Appellate Rule 57. ^ 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. Appellate Rule 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. "^ This does not include 23 attorney andjudicial discipline opinions or one opinion related to certified questions. These opinions did not reverse, vacate, or affirm any other court's decision. This also does not include 10 opinions which considered petitions for post conviction relief 1128 INDIANA LAW REVIEW [Vol. 35:1 117 TABLE £-2 Disposition of Petitions to Transfer TO Supreme Court in 200r Denied or Dismissed Granted Total Petitions to Transfer Civir Criminal' Juvenile Total 677(91.5%) 63 (8.5%) 740 240 (87.6%) 34(12.4%) 274 410(93.4%) 29 (6.6%) 439 27(100%) (0%) 27 ' This Table analyzes the disposition ofpetitions to transfer by the court. See IND. AppellateRUle 58(A). ' This also includes petitions to transfer in tax cases and worker's compensation cases. ' This also includes petitions to transfer in post-conviction relief cases. 2002] INDIANA SUPREME COURT 1129 TABLE F Subject Areas of Selected Dispositions WITH Full Opinions" Original Actions Number • Certified Questions T • Writs of Mandamus or Prohibition • Attorney Discipline 23'*' • Judicial Discipline T Criminal • Death Penalty IC • Fourth Amendment or Search and Seizure 9^ Writ of Habeas Corpus Emergency Appeals to the Supreme Court Trusts, Estates, or Probate Real Estate or Real Property 4"" Personal Property Landlord-Tenant Divorce or Child Support obb Children in Need of Services (CHINS) Paternity Product Liability or Strict Liability 1" Negligence or Personal Injury 6'''' Invasion of Privacy 1"* Medical Malpractice Indiana Tort Claims Act 2"^ Statute of Limitations or Statute of Repose 1^ Tax, Department of State Revenue, or State Board of Tax Commissioners 3"' Contracts 2" Corporate Law or the Indiana Business Corporation Law 2^ Uniform Commercial Code 2^ Banking Law 1" Employment Law J*™" Insurance Law ^nn Environmental Law noo Consumer Law Worker's Compensation 2PP Arbitration Administrative Law 3qq First Amendment, Open Door Law, or Public Records Law Full Faith and Credit Eleventh Amendment Civil Rights 3" Indiana Constitution 26 " This Table is designed to provide a general idea of the specific subject areas upon which the court ruled or discussed, and how many times it did so in 200 1 . It is also a quick-reference guide to court rulings for practitioners in specific areas ofthe law. The numbers corresponding to the areas oflaw reflect the number of 1130 INDIANA LAW REVIEW [Vol. 35:1117 cases in which the court substantively discussed legal issues about these subject areas. Also, the following 53 miscellaneous attorney discipline cases are not in the table: In re Relphorde, 760 N.E.2d 172 (Ind. 2001) (order approving statement of circumstances and conditional agreement); In re Smith, 760 N.E.2d 171 (Ind. 2001) (order accepting resignation); In re Lowry, 760 N.E.2d 170 (Ind. 2001) (order suspending respondent); In re Hoogland, 760 N.E.2d 169 (Ind. 2001) (order approving statement of circumstances and conditional agreement); In re Herthel, 760 N.E.2d 1 55 (Ind. 2001) (order fmding misconduct and imposing discipline); In re Tudor, 760 N.E.2d 154 (Ind. 2001) (order fmding misconduct and imposing discipline); In re Blackham, 760 N.E.2d 153 (Ind. 2001) (order finding misconduct and imposing discipline); In re Griffiths, 760 N.E.2d 1 53 (Ind. 200 1 ) (order finding misconduct and imposing discipline); In re Evans, 759 N.E.2d 1 064 (Ind. 200 1 ) (order approving statement of circumstances and conditional agreement); In re Butler, 759 N.E.2d 215 (Ind. 2001) (order to show cause); In re Hardy, 759 N.E.2d 214 (Ind. 2001) (order to show cause); In re Graybill, 759 N.E.2d 213 (Ind. 2001) (order to show cause); In re Forgey, 759 N.E.2d 212 (Ind. 2001) (order to show cause); In re Caravelli, 758 N.E.2d 930 (Ind. 2001) (order approving agreed resolution of objections to automatic reinstatement); In re Sheldon, 758 N.E.2d 929 (Ind. 2001) (order approving statement of circumstances and conditional agreement for discipline); In re John, 758 N.E.2d 929 (Ind. 2001 ) (order finding misconduct and imposing discipline); In re Layson, 758 N.E.2d 515 (Ind. 2001) (order suspending the respondent from the practice of law); In re Watson, 757 N.E.2d 1002 (Ind. 2001) (order finding misconduct and imposing discipline); In re Headlee, 756 N.E.2d 969 (Ind. 2001) (order finding misconduct and imposing sanction); In re Benjamin, 756 N.E.2d 967 (Ind. 2001) (order accepting resignation and concluding proceeding); In re Starkes, 756 N.E.2d 964 (Ind. 2001) (order approving statement of circumstances and conditional agreement for discipline); In re Bean, 756 N.E.2d 964 (Ind. 2001) (order approving statement of circumstances and conditional agreement for discipline); In re Layson, 755 N.E.2d 162 (Ind. 2001) (order to show cause); In re Alvarez, 755 N.E.2d 162 (Ind. 2001) (order approving statement of circumstances and conditional agreement for discipline); In re Meek, 755 N.E.2d 161 (Ind. 2001) (order approving statement of circumstances and conditional agreement for discipline); In re Johnson, 755 N.E.2d 160 (Ind. 2001) (order to show cause); In re Caravelli, 755 N.E.2d 160 (Ind. 2001) (order staying automatic reinstatement pending resolution ofcommission objections); In re Atanga, 754 N.E.2d 498 (Ind. 2001 ) (order revoking respondent's probation and imposing suspension); In re Singleton, 754 N.E.2d 498 (Ind. 2001) (order approving statement of circumstances and conditional agreement for discipline); In re Holajter, 754 N.E.2d 497 (Ind. 2001) (order approving consent to discipline and imposing suspension and order clarifying final order); In re Harlowe, 753 N.E.2d 1284 (Ind 2001) (order suspending respondent due to disability); /« re Transki, 753 N.E.2d 1283 (Ind. 2001) (order to show cause); In re Coons, 751 N.E.2d 678 (Ind. 2001) (order approving statement of circumstances and conditional agreement for discipline); In re Silverman, 750 N.E.2d 376 (Ind. 2001) (order approving statement of circumstances and conditional agreement for discipline); In re Caravelli, 750 N.E.2d 376 (Ind. 2001 ) (order finding misconduct and imposing discipline); In re Wells, 750 N.E.2d 369 (Ind. 2001) (order finding misconduct and imposing discipline); In re Jones, 750 N.E.2d 368 (Ind. 2001) (order accepting resignation and concluding proceeding); In re Carl, 748 N.E.2d 856 (Ind. 2001) (order to show cause); In re Bowman, 748 N.E.2d 364 (Ind, 2001) (order approving statement ofcircumstances and conditional agreement for discipline); In re McQuillin, 747 N.E.2d 563 (Ind. 2001) (order accepting resignation and concluding proceeding); In re Johnson, 747 N.E.2d 563 (Ind. 2001) (order accepting resignation and concluding proceeding); In re Jones, 747 N.E.2d 562 (Ind. 2001) (order of suspension upon notice of guilty finding); In re Mysliwiec, 747 N.E.2d 561 (Ind. 2001) (order approving statement of circumstances and conditional agreement for discipline); In re Evans, 747 N.E.2d 561 (Ind. 2001) (order of suspension upon notice ofguilty finding); In re Petrovic, 747 N.E.2d 560 (Ind. 2001) (order accepting resignation and concluding proceeding); In re Poole, 747 N.E.2d 56 (Ind. 2001) (order accepting resignation and concluding proceeding); In re Taylor, 744 N.E.2d 43 1 (Ind. 2001 ) (order postponing effective date ofsuspension); In re Haynes, 744 N.E.2d 430 (Ind. 200 1 ) (order approving statement ofcircumstances and conditional agreement for discipline); In re Peters, 742 N.E.2d 503 (Ind. 2001) (order approving statement ofcircumstances and conditibnal agreement for discipline); In re Collins, 741 N.E.2d 1246 (Ind. 2001) (order approving statement of circumstances and conditional 2002] INDIANA SUPREME COURT 1131 agreement for discipline); In re Light, 741 N.E.2d 1245 (Ind. 2001) (order finding misconduct and imposing discipline); In re Cheslek, 741 N.E.2d 1244 (Ind. 2001) (order approving statement of circumstances and conditional agreement for discipline); In re Chovanec, 741 N.E.2d 1244 (Ind. 2001) (order of reinstatement). Livingston v. Fast Cash USA, Inc., 753 N.E.2d 572 (Ind. 2001). "' /«re Miller, 759N.E.2d209(Ind.2001);/«re Baker, 758N.E.2d56(Ind. 2001); //ireCapper, 757 N.E.2d 138 (Ind. 2001); /n re Moore, 756 N.E.2d 506 (Ind. 2001); /« re Richards, 755N.E.2d 601 (Ind. 2001); In re Hear, 755 N.E.2d 579 (Ind. 2001); In re McClellin, 754 N.E.2d 500 (Ind. 2001); In re Rodriguez, 753 N.E.2d 1289 (Ind. 2001); In re Caravelli, 750 N.E.2d 376 (Ind. 2001); In re Tsoutsouris, 748 N.E.2d 856 (Ind. 200 1 ); In re Radford, 746 N.E.2d 977 (Ind. 200 1 ); In re Thayer, 745 N.E.2d 207 (Ind. 200 1 ); In re Galanis 744 N.E.2d 423 (Ind. 2001);/n re Wagner, 744 N.E.2d418(Ind. 2001); //I re Spraker,744N.E.2d4I5 (Ind 2001); In re Haith, 742 N.E.2d 940 (Ind. 2001); In re Paras, 742 N.E.2d 924 (Ind. 2001); In re Luddington, 742 N.E.2d 503 (Ind. 2001); In re Taylor, 741 N.E.2d 1293 (Ind. 2001); In re Shull, 741 N.E.2d 723 (Ind. 2001); In re Murgatroyd. 741 N.E.2d 719 (Ind. 2001); In re Davis, 740 N.E.2d 855 (Ind. 2001); In re Harshey, 740 N.E.2d 851 (Ind. 2001). In re Spencer, 759 N.E.2d 1064 (Ind. 2001); In re Funkc, 757 N.E.2d 1013 (Ind. 2001). Castor V. State, 754 N.E.2d 506 (Ind. 2001 ) (affirming); Bcn-Yisrayl v. State, 753 N.E.2d 649 (Ind. 2001 ) (aflTirming); Timberlake v. State, 753 N.E.2d 591 (Ind. 2001) (affirming); Wrinkles v. State, 749 N.E 2d 1 179 (Ind. 2001) (affirming); Allen v. State, 749 N.E.2d 1 158 (Ind. 2001) (affirming); Ingle v. State, 746 N.E.2d 927 (Ind. 2001) (reversing); Lambert v. State, 743 N.E.2d 719 (Ind. 2001) (affirming ); Stephenson V. State, 742 N.E.2d 463 (Ind. 2001) (affirming); Daniels v. State, 741 N.E.2d 1 177 (Ind. 2001) (affirming); Prowell V. State, 74 1 N.E.2d 704 (Ind. 200 1 ) (reversing). Edwards v. State, 759 N.E.2d 626 (Ind. 2001); Gray v. State, 758 N.E.2d 519 (Ind. 2001); West v. State, 758 N.E.2d 54 (Ind. 2001); Crawford v. State, 755 N.E.2d 565 (Ind. 2001); Woodford v. State, 752 N.E.2d 1278 (Ind. 2001); Vitek v. State, 750 N.E.2d 346 (Ind. 2001); Lockett v. State, 747 N.E.2d 539 (Ind. 2001); Mitchell v. State, 745 N.E.2d 775 (Ind. 2001); Smith v. State, 744 N.E.2d 437 (Ind. 2001). Equicor Dev., Inc. v. Westfield-Washington Township Plan Comm'n, 758 N.E.2d 34 (Ind. 2001); City ofNew Haven v. Reichhart, 748 N.E.2d 374 (Ind. 2001); Noble County v. Rogers, 745 N.E.2d 194 (Ind. 200 1 ); City Chapel Evangelical Free, Inc. v. City ofSouth Bend, ex rel. Dep't ofRedev., 744 N.E.2d 443 (Ind. 2001). »* Sholes V. Sholes, 760 N.E.2d 156 (Ind. 2001); Cannon v. Cannon, 758 N.E.2d 524 (Ind. 2001); Buckalew v. Buckalew, 754 N.E.2d 896 (Ind. 2001). ''^ Degussa Corp. v. Mullens, 744 N.E.2d 407 (Ind. 2001 ). '•'• Moberly v. Day. 757 N.E.2d 1007 (Ind. 2001); Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970 (Ind. 2001 ); Owens Coming Fiberglass Corp. v. Cobb, 754 N.E.2d 905 (Ind. 200 1 ); Forte V. Connerwood Healthcare, Inc., 745 N.E.2d 796 (Ind. 2001); Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939 (Ind. 2001); Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453 (Ind. 2001). « Felsher v. Univ. of Evansville, 755 N.E.2d 589 (Ind. 2001). ^ Mangold exrel Mangold v. Ind. Dep*t ofNatural Res., 756 N.E.2d 970 (Ind. 2001); Noble County v. Rogers, 745 N.E.2d 194 (Ind. 2001). «» Degussa Corp. v. Mullens, 744 N.E.2d 407 (Ind. 2001). •* State ex rel. Ind. Dep't of Revenue v. Deaton, 755 N.E.2d 568 (Ind. 2001); State Bd. of Tax Comm'rs v. Town ofSt. John, 751 N.E.2d 657 (Ind. 2001); State Bd. OfTax Comm'rs v. Indianapolis Racquet Club, Inc., 743 N.E.2d 247 (Ind. 2001). Allstate Ins. Co. v. Dana Corp., 759N.E.2d 1049 (Ind. 2001); Brown v. Branch, 758 N.E 2d 48 (Ind. 2001). '' Ind. Dep't ofEnvtl. Mgmt. v. RLG, Inc., 755 N.E.2d 556 (Ind. 2001 ); G&N Aircraft, Inc. v. Boehm, 743 N.E.2d 227 (Ind. 2001). •* Livingston v. Fast Cash USA, Inc., 753 N.E.2d 572 (Ind. 2001); Rheem Mfr. Co. v. Phelps Heating & Air Conditioning, Inc., 746 N.E.2d 941 (Ind. 2001). 1132 INDIANA LAW REVIEW [Vol. 35:1 117 " Livingston v. Fast Cash USA, Inc., 753 N.E.2d 572 (Ind. 2001). "^ Fratus v. Marion Cmty. Sch. Brd. of Trs., 749 N.E.2d 40 (Ind. 2001). "" Allstate Ins. Co. V. Dana Corp., 759 N.E.2d 1049 (Ind. 2001); Gallant Ins. Co. v. Isaac, 751 N.E.2d 672 (Ind. 2001). Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049 (Ind. 2001); Ind. Dep't of Envtl. Mgmt. v. RLG, Inc., 755 N.E.2d 556 (Ind. 2001). ^ DegussaCorp. v. Mullens, 744 N.E.2d407 (Ind. 2001); GKN Co. v. Magness, 744 N.E.2d 397 (Ind. 2001). •« Equicor Dev., Inc. v. Westfield-Washington Township Plan Comm'n, 758 N E.2d 34 (Ind. 2001); Fratus v. Marion Cmty. Sch. Brd. ofTrs., 749N.E.2d 40 (Ind. 2001); Turner v. City ofEvansville, 740 N.E.2d 860 (Ind. 2001). Forrest v. State, 757 N.E.2d 1003 (Ind. 2001); LeShore v. State, 755 N.E.2d 164 (Ind. 2001) Ashabraner v. Bowers, 753 N.E.2d 662 (Ind. 2001). «• Sholes V. Sholes, 760 N.E.2d 156 (Ind. 2001); Boatright v. State, 759 N.E.2d 1038 (Ind. 2001) Hopkins v. State, 759 N.E.2d 633 (Ind. 2001); Gates v. State, 759 N.E.2d 631 (Ind. 2001); Edwards v. State 759 N.E.2d 626 (Ind. 2001); Gray v. State, 758 N.E.2d 519 (Ind. 2001); West v. State, 758 N.E.2d 54 (Ind 2001); Crawford v. State, 755 N.E.2d 565 (Ind. 2001); Hubbell v. State, 754 N.E.2d 884 (Ind. 2001); Johnson V. State, 749 N.E.2d 1 103 (Ind. 2001); Sanchez v. State, 749 N.E.2d 509 (Ind. 2001); Marley v. State, 747 N.E.2d 1 123 (Ind. 2001); Fosha v. State, 747 N.E.2d 549 (Ind. 2001); Lockett v. State, 747 N.E.2d 539 (Ind. 2001); Kilpatrick v. State, 746 N.E.2d 52 (Ind. 2001); Mitchell v. State, 745 N.E.2d 775 (Ind. 2001); Noble County V. Rogers, 745 N.E.2d 194 (Ind. 2001); City Chapel Evangelical Free, Inc. v. City of South Bend ex rel. Dep't of Dev., 744 N.E.2d 443 (Ind. 2001); Smith v. State, 744 N.E.2d 437 (Ind. 2001 ); Games v. State, 743 N.E.2d 1 132 (Ind. 2001); Russell v. State, 743 N.E.2d 269 (Ind. 2001); Redman v. State, 743 N.E.2d 263 (Ind. 2001); Long v. State, 743 N.E.2d 253 (Ind. 2001); Roby v. State, 742 N.E.2d 505 (Ind. 2001); Ledo v. State, 741 N.E.2d 1235 (Ind. 2001); Sivels v. State, 741 N.E.2d 1 197 (Ind. 2001).