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.