Appellate case ‘purgatory’ exists in Indiana’s government center basement

Outside of courtrooms, conference rooms, and law firm offices, there's a place that most lawyers don't often see but is an essential step in the process cases go through at the Indiana appellate level.

Hundreds of appeals pass through this place each year and countless hours of attorney and judicial work is effectively put on hold. It's the place where cases go once the Indiana Court of Appeals or Tax Court issues a ruling and before a decision is made about whether they'll go to the state's highest court, be revisited, or ultimately die.

"We call this the waiting room, or purgatory," said Appellate Clerk and Indiana Supreme Court Administrator Kevin Smith. "We're waiting to see what happens, waiting to see if they'll move on or waiting to know if they'll be buried."

Located in the basement of the Indiana Government Center South in Room W062, the space is located near where the Indiana Roll of Attorneys office is now housed. Only a handful of people in the Appellate Clerk's Office handle the regular daily duties connected with the files sent to this room, but those few people are a key part of a mostly behind-the-scenes process that's procedurally important in how Indiana caselaw is established and how appellate records are preserved.

The process is one that remains largely the same as it once was in a paper-based world, still existing with efficiency. But slowly, the process is moving toward a new vision about how the system could work, as the Indiana judiciary and legislature continue working to shift the infrastructure from paper to computer.

Behind the scenes

Kevin Murley is the man who's primarily responsible for the appellate case "waiting room" area, where hundreds of cases go to wait for any further action. He holds the position of records division manager and has worked for three appellate clerks during the past seven years, which has allowed him to see many rule changes that included the shift from the election to appointment of the appellate clerk.

"You've got to know the rules from the '80s, '90s, and currently because that'll tell you what's on microfilm and how a case may be stored," he said.

With his experience, Murley can find a file in about 20 seconds and spout off statistics and facts about how many cases come through the office. His current boss, Smith, sees that as a bonus that might escape any casual observer who's checking out the area without any familiarity of the filing system.

"All this paper has a disheveled look, and it looks so unorganized. But that's not exactly an accurate representation," Smith said.

Until about three years ago, the holding area was located in the same place where transfer petitions and briefs are currently kept – inside an old vault in the Indiana Statehouse office of the appellate clerk. All bundles tied with string were kept there, and Murley admits it was a little cumbersome because one had to use a rolling ladder – much like a library bookshelf setup – to review and manage the case bundles.

Now, the "waiting room" area is within W062 where attorneys and the public can also go to view archived case files on microfilm. Like wandering through a library, there are three aisles situated among 32 stacks; one side of an aisle is packed full of bundled case files, with the name and cause number written on the round marker tied to the end. Typically, as many as 500 cases may be in that waiting area for the few-month period before a decision is made, he said.

Most are Court of Appeals cases that are awaiting some type of resolution like a final decision or dismissal, but they include Supreme Court cases and also any Tax Court cases that have been transferred to the justices.

If attorneys request a rehearing or that the Indiana Supreme Court take up the case, the petitions and accompanying briefs are kept upstairs in the clerk's office vault. Once fully briefed, the petition and briefs are married to the full case record and kept in the vault until transferred to the court for consideration.

Regardless of the court's decision, all files are eventually moved on to the archiving arm of the process. When that time comes, after the administrative steps in closing the case and making sure a ruling is certified, then the case bundle is moved on to the archiving section in the bigger, packed room nearby, Murley said. About 300 civil and criminal cases a month pass into the archiving storage area, he said.

Murley said he usually only sees about two dozen or so of the same attorneys in that area, researching old files. Most are from the prosecutor or public defender sides, he said.

But some of well-versed appellate attorneys who have their names attached to cases say that even though they know of the waiting and archiving areas within W062, they have little need to visit that office to review records.

Indianapolis attorney Joel Schumm, who often works defending litigants in criminal matters, said he's had to visit the area only a couple times when he needed to see a record in the transcript or appendix. Most of the older cases are kept by Westlaw or are available through a disk provided, so that's less of a concern than it used to be, he said.

Archiving

Despite how often attorneys or litigants might actually want to access files, the clerk's office is required by statute to maintain files for a certain amount of time. That period is based on the type of case and when it is finally resolved: five years for criminal cases and at least 60 days for civil suits, though Murley said he usually keeps them for about a year just in case of belated briefs or other reasons someone might want it. Capital cases are also required to be kept for five years, but that timeline stretches on because the end result often takes much longer than a typical criminal case.

Once criminal case retention schedules are up, the cases are sent to the State Records Division to keep for an additional 15 years. In civil cases, the clerk's office sends a letter to attorneys and pro se litigants once the 60-day time period expires to see if they might want the trial court record. If not, those bundles are boxed up and sent to Indiana State Archives, the permanent repository of important state government records, which has the authority to either maintain or destroy those actual records.

But before leaving the clerk's office, Murley gets the files ready for microfilming. A place exists between the waiting area and the separate archiving room, an area full of metal file cabinets that holds about 12,500 microfilm rolls going back almost a century – every case since the 1970s is there, and Murley has seen cases dating to the 1920s.

Appellate veteran Karl Mulvaney at Bingham McHale in Indianapolis said it's been years since he really thought about that process, really not since he served as Supreme Court administrator in the 1970s through 1991.

He recalled the active COA-decided cases would be parked in the area where the old docket books were kept – in the place now referred to as the vault.

"I used to go down there to that area that's now General Assembly-controlled to review an old case that's been cited," he said. "There were some cases down there with Abe Lincoln's signature on them, but that was some time ago and those are probably all micro-filmed and kept as historical documents now. In the practical sense, there's little reason now for attorneys to go there."

About $100,000 is usually spent annually on the estimated 5,000 microfilmed cases, Smith said, but he hopes to find a way to increase that microfilming capability in these tough budget times. The office once had about 10 to 12 employees, but that was years ago before the task was outsourced, he said.

If every case could be microfilmed that needed to be, it would likely cost about $1 million, he said. The state just doesn't have those resources, so they handle the task as efficiently as possible, all while hoping that the vision of a new electronic archiving system isn't too far away.

Once an e-filing system is implemented and statutes are amended to allow the clerk's office to store and access those records electronically, Smith said the area now used for microfilming would stop filling up. Instead, a digital reader could be set up there for visitors to see cases that way, or even allow people to view them from their computers.

"This (currently) is not nearly as convenient to an attorney in Angola who must travel here to Indianapolis or have it mailed to them," Smith said. "Eventually, I think we'll go to an e-filing system that could allow us to better archive these materials and not have to spend the time and money that we do for archiving and microfilming. Until that time comes, this is the method we must use."