Interlocutory Appeals and Appellate Jurisdiction

In re Indiana Newspapers v. Miller (Ind. Ct. App. Jan 18, 2012)

- Originally publish January 18, 2012

This published order on rehearing is the latest decision from the Court of Appeals regarding the Indianapolis Star’s attempt to appeal a discovery order issued by the Marion Superior Court. The order follows the published order from December 7, 2012, which dismissed the Star’s appeal.

The Court’s opinion is particularly important to me on a personal level because the Court’s opinion cites a recently-published article I wrote, Appealing Orders Before a Case Ends: Dos, Don’ts and Modest Proposals, 56 Res Gestae, Dec. 2012. This article discusses the rules regarding interlocutory appeals, offers practice pointers for lawyers or parties contemplating an interlocutory appeal, and suggests some minor revisions to Indiana’s rules regarding interlocutory appeals.

The Court’s opinion is also important because it thoroughly explains appellate jurisdiction over interlocutory orders and clarifies several of the finer points regarding appeals of such orders. Three of the Court’s conclusions are particularly important and interesting.

1. The Court explained that parties may not use petitions for rehearing to advance new arguments. A party may use a petition for rehearing to accomplish various purposes, including pointing out a perceived error in an opinion, asking the Court to reconsider a conclusion, or clarifying an argument already made. But a party may not raise issues or arguments in a petition for rehearing that the party did not raise in the initial brief or motion.

2. The Court then recognized that lack of appellate jurisdiction can be raised at any point, cannot be waived, and can be raised by the Court sua sponte. Because appellate courts have a duty to examine jurisdiction at any and all stages of the proceedings, the Court explained that the arguments regarding such as law of the case and waiver do not apply to the jurisdictional issue.

3. The Court then addressed the Star’s argument regarding the Indiana Constitution’s provision guaranteeing parties the right to an appeal. The Court explained that although the Constitution does guarantee a party the ability to appeal an order, the Constitution does not guarantee the right to appeal an order at any time; in other words, the legislature and the courts can establish rules for appeals. Although it can often be frustrating to wait for an appeal to be ripe, a contrary rule would result in a substantial delay at the trial courts, and would likely overload the Court of Appeals’ docket.

In sum, this decision serves as an excellent resource on appellate jurisdiction over interlocutory appeals. Any lawyer considering appealing an interlocutory order would be well served by reviewing this decision.