Expedited appeals in Indiana: too little, too late.

• Date: 22 March 2002
• Author: Schumm, Joel M.

By court rule, the Indiana Supreme Court requires that Indiana's appellate courts give "expedited consideration" to interlocutory appeals and to appeals involving children on issues such as custody, support, visitation, adoption, and the termination of parental rights. Although these cases are certainly worthy of any court's careful and expeditious consideration, the attempt of the appellate courts in Indiana to address them in an expedited manner has had little, if any, practical effect. Moreover, the same rules that expedite consideration of this somewhat disparate class of cases provide no opportunity for expedited consideration of the hundreds of other cases, including the cases of criminal defendants, even those serving a short sentence that will likely expire before the appellate court issues an opinion.

Part I of this Article reviews and critiques the existing procedures in Indiana, including the length of time and the procedures by which cases make their way to and through the state's appellate courts. The Article explores the systemic problems with the purported expedition of cases through specific examples of recent cases in which reversal did not occur until several months after the trial court's erroneous ruling. Part II offers suggestions for improvement: If Indiana is serious about expediting appeals involving children, the rules could easily be changed to expedite record preparation and briefing. However, expediting one category of cases necessarily slows the rendering of decisions in other cases, and thus Indiana should carefully reevaluate whether any cases should be expedited to the exclusion of others, or, at a minimum, consider adopting procedures that more easily allow litigants and the courts to expedite those cases in which an expedited decision is especially important and feasible. As a final alternative, Indiana could easily abandon any notion of expediting appeals and, with a slight change in the rules for transcript preparation, render decisions in most cases in the same amount of time that it currently takes for expedited cases.

1. TO EXPEDITE OR NOT TO EXPEDITE, THAT IS THE QUESTION (WHICH MAKES LITTLE DIFFERENCE)

   The Indiana Rules of Appellate Procedure provide that the appellate courts "shall give expedited consideration to interlocutory appeals and appeals involving issues of child custody, support, visitation, adoption, paternity, determination that a child is in need of services, termination of parental rights, and all other appeals entitled to priority by rule or statute." (1) Although this rule requires the appellate court to give expedited consideration to a case once it arrives at the court, the appellate rules do very little to get the case to the appellate court expeditiously.

   In Indiana, an aggrieved party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty days after the entry of a final judgment. (2) The trial court clerk then has thirty days in which to assemble the clerk's record, (3) and the court reporter has ninety days in which to prepare the transcript and file it with the trial court clerk. (4) The appellant's brief must be filed within thirty days of the completion of the transcript. (5) The appellee's brief is due thirty days after service of the appellant's brief, (6) and the appellant may file a reply brief fifteen days thereafter. (7) Accordingly, if the court reporter and litigants take full advantage of their allotted time, a case will not arrive at the appellate court in less than five and a half months. (8)

   These deadlines are the same whether the appeal is from a final judgment or an interlocutory order, or is an expedited appeal. (9) The only notable distinction among them is that "[m]otions for extension of time in appeals involving worker's compensation, issues of child custody, support, visitation, paternity, adoption, determination that a child is in need of services, and termination of parental rights shall be granted only in extraordinary circumstances." (10) Therefore, whereas a typical expedited appeal will likely arrive at the appellate court in five and a half months, a typical non-expedited appeal may arrive in seven to nine months, if the court reporter or one or both parties seek an extension of time.

   Pursuant to Indiana Rule of Appellate Procedure 21(A), the court will then give "expedited consideration" to interlocutory appeals and appeals involving children, while other cases will be decided in due course. Both categories of cases are decided by either a published opinion or a "not-for-publication memorandum decision." (11) Although the court of appeals does not publish data on the average length of time it takes to issue an opinion in an expedited case, the average is likely about a month. (12) This is not a significant difference from the average disposition time for all cases, which has been in the range of 1.3 to 1.5 months in recent years. (13) In any event, an opinion does not become "final" (nor may it be acted upon by the parties or the trial court) until it is "certified," i.e., until the time has run for the parties to seek a rehearing in the court of appeals or a transfer to the supreme court. (14) This requirement adds at least thirty additional days. (15)

   The net result of these rules is that an expedited appeal is resolved, at the earliest, more than seven months (16) after the filing of a Notice of Appeal, while a non-expedited appeal may take a few months longer. Although well-intentioned, the "expedited" appeals process appears to have little practical effect. Cases involving children are certainly important and worthy of expeditious consideration. Trial court decisions that improperly grant custody, curtail visitation, or terminate a parent-child relationship are decisions that have a significant impact on children, who are helpless to do anything about them. (17) If the trial court makes a mistake, it is a very serious one--and one that should be corrected as soon as possible. (18)

   A few recent cases highlight the magnitude of what is at stake and why any delay, let alone a delay of seven or more months, should be a serious concern in any scheme purported to expedite appeals involving children. In Kirk v. Kirk, (19) the trial court denied, on January 16, 2001, a father's petition for change of custody from the mother and granted him very limited...