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11/27/2017 6:09:00 PM
Indiana Supreme Court justices strive for consensus in their rulings
The Justices of the Indiana Supreme County are from left, Mark Masa, Steve David, Chief Justice Loretta Rush, Christopher Goff and Geoffrey Slaughter. Provided photo
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The Justices of the Indiana Supreme County are from left, Mark Masa, Steve David, Chief Justice Loretta Rush, Christopher Goff and Geoffrey Slaughter. Provided photo

Dan Carden, Times of Northwest Indiana

INDIANAPOLIS — Unlike the U.S. Supreme Court, whose justices sometimes appear to relish issuing scathing dissents to their colleagues' rulings, the highest court in Indiana seemingly is a model of consensus and civility.

Recently released court data for the 2017 budget year, which ran from July 1, 2016, to June 30, 2017, show a whopping 77 percent of the 73 Indiana Supreme Court rulings were unanimously decided by the Hoosier justices.

That was down from 83 percent in 2016, equal to the 77 percent unanimity rate of 2015 and in line with the court's five-year unanimous ruling average of 78 percent.

In comparison, the U.S. Supreme Court, which operated with only eight justices for most of the 2016-17 term, recorded its second-highest tally of unanimous decisions in decades with 57 percent. It's generally at or below 50 percent.

Indiana Chief Justice Loretta Rush, speaking in September to reporters in the Statehouse conference room where the Hoosier justices decide cases, said it's no accident that their percentage of unanimous decisions is so high.

"We work very hard around this table to see if we can get consensus," Rush said. "I think it's a lot cleaner when you have some degree of consensus."

From case to consensus

Most of the decision-making process at the Indiana Supreme Court is conducted behind closed doors and in a manner opaque to the general public, though case filings for each litigant have been available online since April 1, 2016.

Hoosiers also can get a sense of what the justices might be thinking about a case by attending or viewing the webcast of the 40-minute oral argument session that the court usually allows for the cases it decides.

Though, at the end of each oral argument, Rush typically admonishes viewers not to read too deeply into the justices' questions, which often challenge both sides to defend their legal reasoning.

After reviewing the written arguments and participating in oral arguments, the five justices then meet in conference to decide the case and assign who will write the court's official opinion.

However, Rush explained that initial decision in conference ultimately may not be the final ruling by the high court.

She said it's not at all unusual for the justice assigned to write the court's opinion to find that his or her argument is bettered by a proposed dissenting opinion that causes all the justices to rethink the outcome of the case — with sometimes the dissent becoming the court's majority opinion.

"So there's a lot that goes on before that opinion goes out," Rush said.

Justice Steven David, the longest-serving current member of the Indiana Supreme Court, agreed.

He said behind every unanimous court ruling often are dozens of hours of back-and-forth talk and written drafts among the justices as they strive to come to a decision that provides clarity on the law, guidance for future litigants, consistency and predictability.

"The public doesn't fully appreciate the collaborative work," he said.

"It's not sacrificing someone's ultimate opinion, or position, or their philosophy or their interpretation of the law, but instead working for a common good so that a decision provides guidance, instead of confusion."

Indiana justices still dissent

David led the high court for dissents in 2017, writing five of the seven full dissents and two of the four partial dissents.

While dissenting opinions have no impact on the immediate outcome of a case, the justices said that dissents, written judiciously, are useful for showing the diversity of thought on a legal issue at a point in time — in case that issue is before the court again in the future.

"I really respect the dissents and the concurrent results that come out," Rush said. "We don't write for writing's sake, and we don't over-write."

Dissents also largely are driven by specific details of the cases before the court in any given year.

In 2016, for example, David wrote zero dissents to the court's 85 majority rulings. One year earlier, all five justices wrote at least one dissent, with then-Justice Robert Rucker, of Gary, leading the court with five.

"There's a significant amount of work that goes into those opinions, even if they're a (unanimous) opinion, and an occasional dissent represents the fact that we are all doing and taking our individual roles very seriously," David said.

Asked whether dissents on Indiana's high court might be somewhat rare because all five current justices were appointed by Republican governors, upon the recommendation of the nonpartisan Indiana Judicial Nominating Commission, David said "absolutely not."

Justice Geoffrey Slaughter, a Crown Point native, pushed back even harder: "I don't think that's a fair statement at all," he said.

While Slaughter acknowledged the actions of the court inevitably are shaped by the values of the justices who sit on it, he said it still requires a lot of work for people with potentially similar values to even decide which Court of Appeals rulings the high court should review.

"There's not consensus, even among the five Republican-appointed justices, of what we ought to be deciding and how many of them we ought to be deciding," Slaughter said.

Fewer cases being decided

It is clear, however, that the Indiana Supreme Court has been deciding fewer cases in recent years.

The 73 rulings in 2017 were 14 percent less than the 85 decisions issued by the court in 2016. There were 100 rulings in 2015, 94 in 2014 and 78 in 2013.

Slaughter said it's too early to know for sure, but he sees the decline in court rulings since Rush became Indiana chief justice in mid-2014 mirroring a similar drop in decisions by the U.S. Supreme Court following the appointment of Chief Justice William Rehnquist in 1986.

"Stay tuned; it remains to be seen whether this trend over the last three years represents the beginning of things to come, or whether it represents simply an aberration and we'll revert to the mean at some point," Slaughter said.

Justice Mark Massa attributed the decline in Supreme Court decisions to outstanding work by Indiana's trial court judges in following proper procedures and making correct rulings.

He noted that of the more than 1 million cases filed in trial courts during 2017, just 875 ultimately were appealed to the Supreme Court, with about 8 percent of those being accepted by the justices and receiving a ruling.

"I think when you look at the numbers ... you are reminded just how blessed Indiana is by its quality of trial judges," Massa said.

"The point you take away from this is what an extraordinary job trial court judges do every day calling balls and strikes."

Slaughter concurred: "Obviously a case that never gets appealed never comes to us," he said. "A lot of that is the trial courts are getting it right."

Copyright 2017, nwitimes.com, Munster, IN






Editor, John C. DePrez Jr.; Executive Editor, Carol Rogers; Publishers: IBRC and IAR


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