The COA Opinion of August 18, 2021 in Denman v. St. Vincent Medical Group forces the CLB into a retraction. It was in a July appellate case note entitled “Sentence Review and the Disjunctive ‘And’” that the CLB declared:
“No person or entity in the State of Indiana should be more competent or more careful in the writing of laws (here procedural rules carrying the force of law) than our Supreme Court.”
This favorable declaration was made despite a gentle criticism of the SCOTSI for using “and” in Appellate Rule 7(B) (pertaining to sentence review in criminal appeals) where “or” should have been used. Now the CLB is obliged to retract and withdraw the inference of praise of the drafting competence of the SCOTSI respecting its Rules and Orders in furtherance thereof. Proof of the competence deficit arises from the subject COA Opinion and what may be called a “Covid Emergency” Administrative Order of the SCOTSI effective (in Marion County) on or about March 13, 2020. Within that Order was the following text:
“No interest shall be due or charged during the tolled period.”
The “tolled period” began March 16, 2020 and continued (after an extension) into June of 2020.
To the thinking of the CLB, “no interest” should be construed to mean precisely “no interest,” regardless of the consequences. But the COA panel of Judges Altice (author), Robb, and Weissmann disagree and do so for good reason.
To the thinking of the COA panel, there was a critical difference between pre-judgment interest, as to which there is a place for judicial discretion, and post-judgment interest, as to which there is a substantive statute. The statute on pre-judgment interest for tort claims (which a trial court judge “may award”) is found at IC 34-51-4-5 and 6 while a “nondiscretionary” post-judgment interest statute is found at IC 24-4.6-1-101.
Seeing that post-judgment interest is automatic in accord with a substantive statute the COA panel seemed persuaded that the SCOTSI was without constitutional authority to suspend the accrual of such interest by way of a procedural Order. But rather than simply declare that the SCOTSI (a higher court to the COA) had issued an unconstitutional order, the COA panel concluded that “no interest” referred to “no pre-judgment interest” while having no impact at all on post-judgment interest.
How could this be? The only time I ever urged (on appeal) a “surgical construction”¹ of a statute to avoid a perceived constitutional defect, the COA slapped me down . . . hard. It seems that a different rule will be applied to rescue a SCOTSI Order or Rule from constitutional infirmity. There is irony and absurdity in the COA rationale:
“Interpreting ‘no interest shall be due or charged’ to exclude post-judgment interest is also consistent with the restraint our Supreme Court has demonstrated . . .” (emphasis added) Slip Opinion pp. 42-43
How is it restrained to construe a statute, rule, or SCOTSI Order, by ignoring the ordinary meaning of its unambiguous language and to re-write it?
In fairness to the COA panel, it was thrust into the unenviable position of reviewing an Order from the Senior Court. The reason for that tension is the SCOTSI’s careless (at best) drafting of its March 13, 2020 Order.
While it is unlikely that CLB advice will be followed, or even seen, by the SCOTSI the CLB is obliged to recommend that the drafting of procedural rules and related orders of general applicability be delegated to other responsible, disciplined, and qualified individuals under SCOTSI supervision.²
In the case on appeal the SCOTSI should grant Transfer to admit the constitutional defect in its Order of March 13, 2020 and to caution the COA against radical construction of simple language in a statute, rule, or SCOTSI Order.
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¹ A “surgical” construction is meant to refer to the redaction of offending words.
² The CLB offers the observation that judicial review of the actions of others and the drafting of rules and corresponding orders are very different tasks requiring different skills.
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