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Petition to Transfer

“What is a Petition to Transfer? Is it a brief, motion or booklet like in the Court of Appeals of Indiana?”

The Petition to Transfer is the key document to distill alleged mistakes made at the trial court level and on appeal by the Court of Appeals of Indiana to a very short document to catch the attention of the Justices of the Indiana Supreme Court. The Petition to Transfer may be the only document that connects your case with this higher court, as there is no requirement a party who prevailed in the Court of Appeals of Indiana has to proceed in the Indiana Supreme Court.

The Petition to Transfer can be no longer than ten (10) pages or 4,200 words in length, whichever is longer. Thus, it is important to make every word count. It must be filed with the one-hundred-twenty-five dollar ($125.00) filing fee. This Petition to Transfer only has seven sections.

The first, following the cover, is the Question Presented on Review. This should be a brief statement identifying the legal issue, question, or precedent you allege has been decided incorrectly by the courts below warranting discretionary transfer. This statement must not be argumentative or repetitive. The statement must be set out by itself on the first page.

The second section is the table of contents. The table of contents must list each section of the Petition, including the headings and subheadings of each section and the page on which they begin. This is key because the Indiana Supreme Court also has available to it the underlying briefing in the Court of Appeals of Indiana if it wishes to review same in deciding transfer. With the headings and subheadings, this makes it much easier to cross-reference briefing.

The third and key area of the Petition to Transfer covers the background and prior treatment of the issues on transfer. This is to be a brief statement of the procedural and substantive facts necessary for consideration of the Petition for Transfer, including a statement of how the issues relevant to transfer were raised and resolved in the trial court and Court of Appeals. To the extent extensive procedural or factual background is necessary, reference may be made to the appellate briefs filed in the Court of Appeals of Indiana. Remember you only have forty-two hundred (4,200) words to demonstrate a reason for transfer.

The fourth section of the Petition is the same as what occurred at the trial and in the Court of Appeals: the argument. This section must contain your argument. This is a synthesis of the facts relevant to the issue in your case with the law and an explanation how the trial court and/or Court of Appeals erred in their decision.

The fifth section is the conclusion. It is important to remember to clearly ask the Indiana Supreme Court for the relief you want. Do you want it to reverse the Court of Appeals and reinstate the trial court’s decision? Do you want it to reverse the Court of Appeals and trial court? What do you want it to do with some or all of the issues on transfer?

The sixth section is the word count certificate if necessary. That is, if you exceed the page allowance above, you would need to have a word count certification to ensure you were within the word limits. Usually word count is longer than the page limits, so it is fairly likely you will have a word count certificate. As a matter of course, most appellate counsels include word count as a matter of course, even if not necessary because they are within the page limits set forth in the Indiana Rules of Appellate Procedure.

The final section is certificate of service showing the other parties received a copy of your Petition to Transfer so they know their time is ticking to file any additional briefing. Remember, however, the prevailing party in the Court of Appeals has no duty to continue in the Indiana Supreme Court.
This noted, the Indiana Supreme Court may grant transfer from “Memorandum Decision” or a “Published Decision”. It may do so purely for error correction. However, the main focus of the Indiana Supreme Court is developing the law. For this reason, the Indiana Rules of Appellate Procedure set forth the six major considerations the Indiana Supreme Court looks for in the Question Presented to determine whether to grant Transfer.

The first is that the challenged Court of Appeals’ decision entered conflicts with other decisional law of the Court of Appeals. Since the judges on the Indiana Court of Appeal rotate in three-judge panels, conflicts between their decisions sometimes arise because there is no horizontal privity but just vertical privity. This means that while one panel of the Court of Appeals may disagree in a decision with another, they are only bound by the decision of the Indiana Supreme Court.

The second reason the Indiana Supreme Court relays is a basis for granting transfer is conflict with a decision of the Supreme Court on an important issue. The Court of Appeals must follow the Indiana Supreme Court’s caselaw. Where there is a conflict, there is a strong reason for transfer.

The third basis for transfer is the Court of Appeals decision has decided an important federal question in a way that conflicts with a decision of the Supreme Court of the United States or a United States Court of Appeals. Federal law is supreme under the Supremacy Clause.

The fourth and more common basis for transfer is the Court of Appeals has decided an important question of law or a case of great public importance that has not been, but should be, decided by the Supreme Court. New questions and applications of the law occur about all of the time in Court of Appeals’ decisions. However, where they are significant, it is important for the Indiana Supreme Court to sanction the decision of the Court of Appeals, namely this is sound law for Indiana.

The fifth consideration is logical—a precedent in need of reconsideration. In this case, the Court of Appeals has correctly followed ruling precedent of the Supreme Court, but such precedent is erroneous or in need of clarification or modification in some specific respect. Ultimately, to stay relevant and meet the needs of its citizens, the law sometimes must change to keep up and meet the needs of our society and this is what this provision is for. Presumably, we all want the Indiana Supreme Court keeping the laws relevant to our needs, those of the state, and those of the business world.

The sixth and final consideration is the Court of Appeals decision has so significantly departed from accepted law or practice or has sanctioned such a departure by a trial court as to warrant the exercise of Supreme Court jurisdiction. The last thing the Supreme Court wants is great upheaval in the laws and practice in the state. If such a decision issues by the Court of Appeals, the Supreme Court may well grant transfer to address that incongruity.

But again, remember, the Indiana Supreme Court can grant transfer on any case, even one outside of these considerations if transfer is necessary to ensure fundamental fairness and due process of law dictates such.

Sample of Appellant’s Petition to Transfer.

If you agree with our style of writing and oral advocacy, perhaps Ciyou & Dixon, P.C. attorneys should be your appellate counsel. In certain cases, we have appeared just to handle the Petition to Transfer after an unexpected loss in the Court of Appeals or because of a breakdown with a client’s prior relationship with counsel. Should we be your counsel?

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