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Designated Hitter

The designated hitter is a concept that many know from major league baseball.  The rule allows for a hitter to be designated to bat for a pitcher throughout the game.  The Cubs successfully used Indiana University’s own Kyle Schwarber as a designated hitter in last year’s World Series.  A recent circumstance in an Indiana appeal suggests that it might be time to authorize the Supreme Court to pull up another justice or judge from the dugout to sit on the Supreme Court’s bench from time-to-time. 

Recently, in Schuchman/Samberg Investments, Inc. v. Hoosier Penn Oil Co. Inc., 58 N.E.3d 241, 244 (Ind. Ct. App. 2016), the Supreme Court denied the Appellant’s petition to transfer and refused to hear that case.  For a petition to be accepted, three of the five justices are typically required to vote to accept to hear the case.  While a denial of transfer is not generally unusual, the Schuchman/Samberg petition was unusual in that three justices denied transfer and two of the justices recused themselves and did not participate in the decision.

The job of convincing the Supreme Court to take any case on transfer is no easy task.  In the 2015-16 Annual Report, Indiana’s Supreme Court issued sixty-nine decisions on petitions to transfer in both criminal and civil cases.  Conversely, the Court denied 662 petitions.  http://www.in.gov/judiciary/supreme/files/1516report.pdf (last visited December 5, 2016).  That is, the Court accepted just 10% of the petitions that it reviewed.  In Schuchman/Samberg’s case, it seems strikingly unfair to remove a party’s ability to persuade two judicial officers who make up forty percent of the total group and also be required to convince all or a majority of the remaining justices simply because two justices made a determination that it was not appropriate for either to consider the matter for whatever reason.


Federally, Congress has created a statutory playbook by which federal judges can temporarily be moved up or down from a district court to an appellate court, depending on the needs of the courts.  One such statute, 28 U.S.C. § 292(a), allows a district court judge to be designated to serve on a circuit court of appeals.  See Nguyen v. United States, 539 U.S. 69, 74 (2003).  The designation statute authorizes the chief judge of a circuit to assign “one or more district judges within the circuit” to sit on the court of appeals “whenever the business of that court so requires.”  Id. (citing 28 U.S.C. § 292(a)).  Additionally, pursuant to 28 U.S.C. § 294(a), any retired SCOTUS Justice may be designated to act as a circuit judge in any circuit; and; pursuant to 28 U.S.C. § 294(c),  any retired circuit or district judge may be designated to perform judicial duties within the circuit as they are willing and able to undertake.  If similar laws or rules were adopted in Indiana, there is little doubt that judges from the Indiana Court of Appeals could fill this need.  Moreover, Indiana is currently in the unique position of having four recently retired former Supreme Court Justices who are certainly capable of filling this need if called upon.  

While the Schuchman/Samberg circumstance is no doubt unintended and admittedly rare, it does happen.  See Powell v. State 528 N.E.2d 483 (Ind. 1988) (transfer denied by rule based on an even split among four justices with one justice abstaining because he served as the trial court judge); Bragg v. State, 50 N.E.3d 147 (Ind. 2016) (transfer denied after oral argument and upon further review because four members of the Court were evenly divided on the proper disposition, which resulted in the denial of transfer pursuant to Indiana Appellate Rule 58(C)).  With an eye toward maintaining a deep bench and ultimate fairness, Indiana should consider a statute and/or rule that address the imbedded disadvantage that occurs when a Supreme Court Justice recuses him or herself on a case that is pending transfer.

Looking for a Marion County appellate attorney that understands your appellate rights? Contact the attorneys at Keffer Barnhart LLP today if you have questions or believe your constitutional or criminal rights have been violated.  We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their individualized case.  Act now and contact us today at 1-800-NOT-GUILTY or (317) 857-0160.