Friday, May 20, 2011

Indiana Supreme Court Refuses to Accept Charlie White Appeal

Indiana Secretary of State
Charlie White
When Charlie White's counsel filed to appeal Marion County Superior Court Judge Louis Rosenberg's decision sending the case back to the Election Commission for a decision on the merits, I wasn't quite sure how they were taking the appeal since there had been no final judgment.  Without a final judgment, you have to follow the interlocutory appeal rules which require getting permission of the trial and appellate court to take the appeal.

In an opinion today, the Indiana Supreme Court today jurisdiction of the appeal and dismissed it for the reason noted above - no final judgment.  The Court also opined that it would be unlikely it would consider a discretionary interlocutory appeal:
To the extent the trial court might certify its orders of April 7 and May 2, 2011, for discretionary interlocutory appeal in the future pursuant to Appellate Rule 14(B)(1), this Court retains jurisdiction to consider whether to permit such an appeal under Appellate Rule 14(B)(2).  However, this Court would be disinclined to accept such a discretionary interlocutory appeal in light of the benefits to be obtained by prompt resolution of all of the matters now pending.
While I believe the Republicans are right about the merits of the case, I applaud the Court's decision.  I have said for awhile that the appellate courts are taking far too many discretionary interlocutory appeals.   Whenever litigants get a bad preliminary ruling from a trial judge, there is the increasing tendency to run off to the appellate courts and ask for relief.  Permissive interlocutory appeals should rarely be permitted and only under such circumstances that the litigants face some sort of irreparable harm from the trial court's preliminary decision. The trial and appellate courts (you need the approval of both to take an interlocutory appeal) should let the record be fully developed and not constantly second-guess the decisions of trial judges.   My only wish is that the Supreme Court would have used the White case to provide more guidance to trial and appellate courts when considering whether to grant a permissive interlocutory appeal.


Gary R. Welsh said...

I couldn't disagree with you more, Paul. The circuit court is reading a requirement into the statute that is simply not there and inconsistent with the Commission's interpretation. It should have at least taken the case to decide whether the Commission or the circuit court was interpretating the statute correctly. If the circuit court is wrong, then the petition couldn't even be heard as the Commission already ruled. He could be compelled to make incriminating statements that will be used in the pending criminal case. The circuit court's interpretation of the statute is one that has never been read into that statute before now.

Paul K. Ogden said...
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Paul K. Ogden said...


Actually I'm a lot more swayed by the point about incriminating statements as a reason for interoluctory appeal to put things on hold. I skipped over that too quickly, instead using the opportunity to blast the abuse of the interlocutory appeal process. The 3 1/2 years I clerked on the Court of Appeals, I cannot recall ever working on any interloctury appeals. Now whenever people feel wronged by a decision at the trial level, they run off to the Court of Appeals.

Regarding the other part of the issue, I'm not that persuaded that the fact that Judge Rosenberg interpreted the law wrong (I think we agree on that) is a basis for a permissive interlocutory appeal. The erroneous lecal conclusion by Judge Rosenberg can always be addressed on a direct appeal

Gary R. Welsh said...

But the Commission's decision to dismiss the original petition the Democrats filed was a final judgment, which the petitioners appealed to the circuit court. I disagree with the Supreme Court's decision that no final judgment had been rendered. A dismissal for failure to state a cause of action is always appealable. The Court should have considered at least whether the circuit court was correct in reversing the Commission's dismissal.

Reform Believer said...
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Reform Believer said...

Indiana needs to have a Mandamus procedure, like other states and the federal government, in order to deal with pigheaded local judges.

Cato said...

White has the right not to testify in the recount case. Properly conceived, the election case is in rem the election, not State v. White.

White can refuse to appear, and the commission cannot compel him to appear, as White can cite 5th grounds, but the commission can fully proceed in absence of White's testimony.

The election and the criminal case are discrete issues.