Can the Indiana Supreme Court Remand Cases to the Court of Appeals?

by: Colin E. Flora

     Generally, we try to keep posts on the Hoosier Law Blog fairly accessible to both lawyers and non-lawyers. This post, however, is unavoidably esoteric. The cause for our discussion is the Indiana Supreme Court’s opinion Bayer Corp. v. Leach, from earlier today. The gravamen of the case is not overly controversial: where a complaint presents multiple sets of facts each supporting separable claims for relief, each unique set of facts may be challenged on a motion for judgment on the pleadings such that a complaint may be dismissed in part even if at least one set of facts presents a claim on which relief may be granted. While that issue merited some note, it is not what caught my attention. What threw me for a loop was seeing the final substantive sentence of the opinion: “We remand to the Court of Appeals to consider the viability of each of the plaintiffs’ claims.”

     For those more familiar with the practices of the Supreme Court of the United States, that language probably does not strike you as odd. After all, the SCOTUS has a tradition of Grant Vacate Remand (GVR) orders. It is also not unheard of for that Court to set out a rule or principle and then remand the case to one of the circuit courts of appeals or a state appellate court for a ruling, as it did in Spokeo, Inc. v. Behrend. But the transfer procedure to the Indiana Supreme Court is, at least as gleaned from the Indiana Appellate Rules, meaningfully different.

     Under Indiana Appellate Rule 58(A), “Upon the grant of transfer, the Supreme Court shall have jurisdiction over the appeal and all issues as if originally filed in the Supreme Court.” As for the ruling from the Indiana Court of Appeals, that ruling is “automatically vacated except for: (1) those opinions or portions thereof which are expressly adopted and incorporated by reference by the Supreme Court; or (2) those opinions or portions thereof that are summarily affirmed by the Supreme Court, which shall be considered as Court of Appeals’ authority.” And that’s how I’ve always seen in play out.

     Notably, if transfer is sought to the Indiana Supreme Court, the court may hear oral argument before deciding whether to grant transfer. If argument is held before granting transfer, then the party who has petitioned for transfer argues first. If, however, transfer has been granted before argument, then it is the original party seeking the appeal to the court of appeals that presents first. That can, of course, work out such that it would be the same party either way (i.e. the party who sought the appeal lost at the court of appeals). But that strongly suggests a fidelity to the concept embodied by Rule 58(A) that once a case is transferred to the Indiana Supreme Court, it is as if it had been filed there in the first place. But cases that are filed under the original jurisdiction of the Indiana Supreme Court are not preceded by decisions from the state’s intermediate court. That would suggest that once the Indiana Supreme Court accepts transfer, it must be the final arbiter of the appeal. Yet that is not what happened in Bayer.

     Bayer led me to look into the caselaw and history for precedent. We start by first acknowledging that Rule 58(A) was preceded by Rule 11(B)(3), enacted in July 1, 1972. The language of Rule 11(B)(3) is substantively identical to current Rule 58(A), at least as far as this discussion is concerned.

     The first instance of the supreme court remanding to the court of appeals appears to be American States Insurance Co. v. State. Notably, that occurred on June 8, 1972—less than a month before Rule 11(B)(3) took effect. That case is distinguishable from Bayer because it was the Indiana Supreme Court’s review of an order dismissing an appeal, not review of an appellate decision. Current Rule 57(B)(4) permits transfer of orders dismissing appeals. The same practice was permitted under the interplay of former Rule 11(A) & 11(B), While there is no separate provision governing what may occur once transfer of an order dismissing an appeal has been granted, which would suggest that the Indiana Supreme Court would then be tasked with resolving the case, the reasonable conclusion is that a reinstated appeal should then be permitted to go through the typical appellate process. There are a numerous cases that have remanded to the court of appeals from the posture of a prematurely terminated appeal or one where a procedural error has resulted in a less than fully presented appeal. There is another subset of decisions remanding to the Court of Appeals in the spirit of a GVR to reconsider the ruling in light of new precedent, as typified by Pirnat v. State.

     There are a handful of other cases that are more closely in line with Bayer. On June 11, 1973, the Indiana Supreme Court issued an order remanding to the Court of Appeals “for the limited purpose of giving a statement in writing on a substantial question arising on the record and presented by the parties as to whether there is sufficient evidence upon which to affirm the trial court in its finding (f) that ‘the lines of annexation are so drawn as to form a compact area abutting the municipality.’” In 1980, the court ruled that punitive damages should be excised from a Court of Appeals’ decision because they could not be awarded against a governmental entity. The following year, the court issued a more substantive finding before remanding to the Court of Appeals, concluding that the appellate court erred by not taking judicial notice of records in its possession from a prior appeal, ordering remand in light of those additional records.

     1982 saw the first true analog to Bayer, when the court wrote, “The Court of Appeals, having reversed the judgment of the trial court, did not address all issues submitted by the appeal. The case is, therefore, hereby remanded to the Court of Appeals with instructions to grant the State’s Petition for Rehearing and to determine the appeal in the light of Wireman v. State[.]”

     A decade later, the Indiana Supreme Court issued an opinion analyzing a portion of a case then “remanded to the Court of Appeals for reconsideration in accordance with th[e] opinion.” A similar circumstance may have occurred in 1995, but it is unclear from the limited record available—i.e. the Court of Appeals’ decision following remand. And in 1996, the court remanded a decision because it had only considered one issue presented. In 2001, the court did the same thing because the Court of Appeals’ decision had not reached all issues necessary to resolve the appeal in light of the decision on transfer. Finally, remand occurred in 2011 in order to “address Argument II.”

     Also of note, there are at least three instances of dissenting opinions in which the dissenters would have seen remand to the Court of Appeals for further consideration: Justice Boehm in 2009, Justices David and Slaughter in 2017, and Justice Slaughter in 2018.

     So what have we discovered? We see there is precedent for remanding to the Indiana Court of Appeals in instances other than errant dismissals. So Bayer is supported by precedent. But Bayer joins an extremely limited line of cases best summarized as instances in which the Indiana Supreme Court has reversed the narrow ground on which the Court of Appeals has ruled and there remains other grounds not addressed.

     How does this comport with the text of Appellate Rule 58(A)? The simple answer is I do not see anyway of squaring this practice with the expressed text of Rule 58(A). Nevertheless, it seems there is something implicit in the Appellate Rules that allows for such remands that arises from the necessity to handle instances in which the Indiana Supreme Court reinstates dismissed appeals. Nothing in the text of the rules appears to authorize the court to remand in such instances. But it would be quite an odd result if the Indiana Supreme Court is left as the court of first-appellate resort simply because the Court of Appeals has errantly dismissed an otherwise viable appeal. If we accept that result, then there’s little reason why the Indiana Supreme Court cannot extend the practice, as it has, in the cases we’ve discussed above.

     As a purist, I would prefer to see Appellate Rule 58 amended to express the authority for such remands. In that regard, I echo Justice Slaughter’s dissent in Morrison v. Vasquez: “I am unable to join the Court’s opinion, however, because the better way to effectuate that policy change is by formally amending our trial rules and not reinterpreting them by judicial fiat with retroactive application.” I would prefer this approach even though there is precedent for Bayer’s remand. As Justice Robert Jackson may have put it best, “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.”

     The key takeaway is that the power of the Indiana Supreme Court to send a case back to the Indiana Court of Appeals for a second look is treated as on par with that of the Supreme Court of the United States, but used sparingly.

     Join us again next time for further discussion of developments in the law.

Sources

(3) The opinion or memorandum decision of the Court of Appeals shall be final except where a petition to transfer has been granted by the Supreme Court. If transfer be granted, the judgment and opinion or memorandum decision of the Court of Appeals shall thereupon be vacated and held for naught, and the Supreme Court shall have jurisdiction of the appeal as if originally filed therein, and all the records, briefs and files of said cause on appeal shall be transferred to the Supreme Court.

*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.

Related Posts