Mark Massa

During his investiture, Justice Mark Massa said, “So what can we promise? A British journalist once went to see Mother Teresa of Calcutta to do a story on her mission in one of the worst slums on earth. Seeing the despair that surrounded, he asked her how she could ever hope to be successful. She took his hand and quietly said, ‘God doesn’t expect us to be successful, he expects us to be faithful.’ And so it is with this Court and my twenty percent role in it. I cannot promise you that I, or that we, will always be successful in finding the right outcome, but we will be faithful; faithful to the rule of law, faithful to the principles of equal justice, faithful to a promise of patient and civil treatment of lawyers and litigants, or as Socrates defined the judge’s charge, ‘to hear courteously, to answer wisely, to consider soberly, and to decide impartially.’ That is my promise to you today: to strive every day to meet Judge Barker’s challenge, courteously, wisely, soberly, impartially; not perfectly…but faithfully. I thank you all again for making this an unforgettable day for me and my entire family. God bless you all, and this Honorable Court.”

See: "Supreme Stories: Profiles of Indiana's Newest Supreme Court Justices." Indiana Supreme Court, 20 Dec. 2012.

Kelly, Niki, and Casey Smith. "Indiana Supreme Court Issues 3-2 Opinion Upholding Party Affiliation Statute in Rust Case." Indiana Capital Chronicle, 6 Mar. 2024.

The article discusses the Indiana Supreme Court's decision in Morales v. Rust. The case addressed whether the "two-primary rule" was unconstitutional, a challenge brought by John Rust, who was removed from the GOP primary ballot for not meeting the party affiliation requirements. Rust also argued that his removal from the ballot was itself unconstitutional.

Members of Med. Licensing Bd. of Indiana v. Planned Parenthood Great Nw., Hawai'i, Alaska, Indiana, Kentucky, Inc., 211 N.E.3d 957 (Ind.), reh'g denied, 214 N.E.3d 348 (Ind. 2023). Concurred in Justice Molter's opinion. *Case Involved Abortion Legislation*

Holding: The Court “vacate[d] the preliminary injunction and remand[ed] [the case] for proceedings consistent with this opinion.” (41) The Court initially held that “providers ha[d] standing to contest the constitutionality of Senate Bill 1 because the statute criminalize[d] their work, and thus they face[d] the sort of imminent, direct, personal injury our standing doctrine requires.” (2) "Then, after examining Article 1, Section 1’s Indiana Supreme Court text, history, structure, and purpose, as well as [the Court's] prior case law interpreting the provision," the Court held that Article 1, Section 1 was "justiciable enforceable." (3) Lastly the Court “h[e]ld that Article 1, Section 1 protect[ed] a women’s a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk, but the General Assembly otherwise retain[ed] broad legislative discretion for determining whether the extent to which to prohibit abortions.” (3) Thus, the Court concluded that the record did not support the preliminary injunction because it found that there were circumstances under which Senate Bill 1 could be consistent with Article 1, Section 1; thus the providers failed to demonstrate a reasonable likelihood of success.

Background: Indiana's General Assembly passed Senate Bill 1, which broadly bans abortion but allowed exceptions in three cases: to save a woman's life or prevent serious health risks, for lethal fetal anomalies, or in cases of rape or incest. Abortion providers challenged the law, arguing that it violated a woman's fundamental right to abortion under Article 1, Section 1 of the Indiana Constitution. The trial court granted a preliminary injunction against the law. The state appealed "seek[ing] to vacate the injunction, arguing that the abortion providers lack[ed] standing; that Article 1, Section 1 [wa]s not judicially enforceable; and that even if it [wa]s, it does not protect a fundamental right to abortion." (2)

Slaughter's Dissent: Justice Slaughter dissented arguing that "[f]or the first time in our state’s history, the Court holds that the Indiana Constitution protects a woman’s right to terminate her pregnancy. The Court’s unprecedented conclusion is both momentous and unnecessary on this record. The only issue before us is the propriety of the trial court’s preliminary injunction. That narrow issue can, and thus should, be resolved without reaching any of the constitutional questions upon which the Court opines gratuitously." (44) She concluded, "I ultimately agree with the Court that the disputed injunction must be vacated, and so I concur in its judgment. But unlike the Court, I would reach that result based on the lack of standing and not on the merits." (44) 

Justice Massa concurred with Justice Molter's opinion in Members of the Medical Licensing Board v. Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky, Inc. In the introductory paragraph, Justice Molter wrote:

"Abortion is an intractable issue because it brings two irreconcilable interests into conflict: a woman’s interest in ending a pregnancy and the State’s interest in protecting the life that abortion would end. Pregnancy is a highly personal experience that can alter a woman’s life and health in countless ways. For some, a pregnancy may be planned, supported, or generally free of any significant health complications. But for others, a pregnancy may be unplanned, lacking significant support, or induce significant health complications. Given the nuance inherent in each woman’s experience and private life, a woman’s desire to continue or terminate a pregnancy is, likewise, intensely personal. At the same time, our laws have long reflected that Hoosiers, through their elected representatives, may collectively conclude that legal protections inherent in personhood commence before birth, so the State’s broad authority to protect the public’s health, welfare, and safety extends to protecting prenatal life." (2) 

In re Indiana Supreme Ct. to Engage in Emergency Rulemaking to Protect CARES Act Stimulus Payments From Attachment or Garnishment From Creditors, 142 N.E.3d 907 (Ind. 2020). Concurred in Rush's majority opinion. 

Holding: The Court granted in part and denied in part a petition to exempt Coronavirus Aid, Relief, and Economic Security (CARES) Act payments from attempts by creditors to attach or garnish those payments. (2)The Court held that Indiana courts should issue no new orders placing holds on, attaching, or garnishing funds if those funds were from a stimulus payment, except for in child support debts. (2) The Court held that previously issued hold/attachment/garishment were entitled to a hearing to argue whether they were on stimulus payments. (2)

Summary: On April 14, 2020, Petitioners filed a petition for emergency rulemaking to protect stimulus payments authorized by Section 2201 of the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) from being garnished by private creditors during the COVID-19 emergency. The Court reviewed the materials received from the creditors' bar. Each Justice had opportunity to discuss their views on the matter in conference with the other Justices and then cast a vote on the petition. The Court had original jurisdiction over supervising other state courts and issuing writs necessary to support its jurisdiction, as outlined in the Indiana Constitution. "In accordance with that jurisdiction, this Court 'ha[d] authority to adopt, amend, and rescind rules of court that govern and control practice and procedure in all the courts of Indiana.' Ind. Code § 34-8-1-3; see, e.g., Ind. Trial Rule 64 (attachments and garnishments). Our rulemaking authority includes authority to act on an emergency basis. See T.R. 80(D)." (1) 

The petition invoked the Court's original jurisdiction and emergency rulemaking authority, seeking to prevent courts from placing holds or attaching judgment-debtors' accounts during the public health emergency in Indiana, with the exception of child support payments. Members of the creditors' bar agreed that stimulus payments should be protected from judgment creditors, but they argued that the petition's requested relief was too broad "encompassing all judgment defendants, all bank attachments and garnishments, and all sources of deposited funds—rather than being tailored to the stimulus payments." (2) 

The Court noted that it had recently used its supervisory authority to order that, unless there was an emergency, Indiana courts should not issue new writs of attachment, civil bench warrants, or body attachments until the public health emergency ends, and to temporarily stay the service of those issued before April 3, 2020. Similarly, the Court found it could suspend all hold, attachment, or garnishment orders during the emergency but concluded "that relief would sweep far too broadly in impeding legitimate collection efforts." (2) The Court found it could use its rulemaking authority to suspend all hold, attachment, or garnishment orders during the emergency, but stated "that relief would sweep far too broadly in impeding legitimate collection efforts." (2) Instead, the Court considered a narrower, more specific approach to provide targeted relief without overstepping its judicial role.

Seo v. State, 148 N.E.3d 952 (Ind. 2020). Rush authored majority opinion. Massa wrote dissent.

Holding: The Court reversed the trial order which held the defendant in contempt for refusing to unlock her iPhone when it was suspected to contain incriminating information. The Court held that "compelled production of an unlocked smartphone [wa]s testimonial and entitled to Fifth Amendment protection— unless the State demonstrate[d] the foregone conclusion exception applie[d]." The Court found that the State had not demonstrated this exception and stated that "this case ... highlights concerns with extending the limited exception to this context." (5)

Background: In this case, Seo argued that forcing her to unlock her iPhone for law enforcement violated her Fifth Amendment right against self-incrimination because it required her to assist in her own prosecution. The State contends that it already knew Seo had control of the phone and its password, thus the information was not new.

Rules: "The Fifth Amendment’s Self-Incrimination Clause protects a person from being 'compelled in any criminal case to be a witness against himself.' U.S. Const. amend. V." (4) "[T]he State [must] produce evidence against an individual through 'the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.' Estelle v. Smith, 451 U.S. 454, 462 (1981)[.]" (4) Defendants are not "forced to provide the State with even a link in the chain of evidence needed for prosecution. See Hoffman v. United States, 341 U.S. 479, 486 (1951)." (4) "Yet, not all compelled, incriminating evidence falls under this constitutional protection: the evidence must also be testimonial. Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 189 (2004)." (4) 

Dissent: Massa argued that the case became moot when the underlying criminal charges were dismissed and that there was no "great public interest" justifying its continued review (19). He contended that the majority spoke as though the contempt order had not been mooted (20). Massa disagreed that this case involved a "great public interest" sufficient to warrant hearing it, arguing that the exception only applied when future cases on the issue were likely to evade review. (22) He also noted that the law surrounding this issue was contested and that reasonable minds could disagree. Massa concluded, "[the] Court’s decision on the merits today is thus not unreasonable, though [he] would come out  the other way for the reasons further explained by Professor Kerr." (27)

McKee v. State, 228 N.E.3d 1081 (Ind. 2024) Voted to deny transfer. Joined Rush's concurrence with separate opinion.

Order Holding: The Indiana Supreme Court reviewed a petition to transfer jurisdiction following a decision by the Court of Appeals. The Court has decided to deny the petition to transfer. 

Rush's Concurrence: Justice Rush concurred with her colleagues in voting to deny transfer but wrote separately to express concerns about the application of Indiana’s invited-error doctrine. 

Background: Previously, McKee appealed his conviction for Murder and his combined eighty-three-year sentence for both Murder and Unlawful Possession of a Handgun by a Serious Violent Felon. The court of appeals affirmed the covinctions. The court of appeals discussed Indiana's invited error doctrine and concluded that the alleged error was not subject to appellate review. "But even if an error is fundamental, the invited error doctrine generally precludes a party from obtaining appellate relief for his own errors. Miller v. State, 188 N.E.3d 871, 874-875 (Ind. 2022) (citing Brewington v. State, 7 N.E.3d 946, 974-975 (Ind. 2014), cert. denied, 574 U.S. 1077 (2015)). That is, 'a party may not take advantage of an error that [he] commits, invites, or which is the natural consequence of [his] own neglect or misconduct.' Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005) (internal quotation omitted)?" (4)

Matter of My.B., 126 N.E.3d 32 (Ind. 2019) Signed court order.

Holding: The Indiana Supreme Court reviewed a petition to transfer jurisdiction following a Court of Appeals decision that found the Fathers children would not receive adequate care without court intervention. 

Dissent: Justice David dissented, arguing that the Supreme Court should grant transfer and reverse the trial court's decision. He contended that the trial court's ruling did not adequately address the complexities of the case. He summarized the cases as follows: Mother and Father had a divorce agreement granting Mother sole physical custody and shared legal custody; however Mother had mental health and substance abuse issues, which led to her being involved in multiple child in need of services (CHINS) actions. Justice David noted that Father had absent from his children’s lives due to Mother's interference. The last CHINS action the children were removed from Mother's care and placed in foster care. The Father was given supervised visitation, the court found that he had not made efforts to maintain contact with his children and needed court intervention to develop a relationship with them. "Father appealed and challenged the sufficiency of evidence underlying the CHINS adjudication for his two children and the Court of Appeals affirmed." (2) David would, "would reverse the lower court, give custody of the children to Father and close the CHINS case as it pertains to Father." (2) He argued there was no reason to believe that father was unable to care for the children and that lack of prior contact was a sufficient finding for court intervention. (3) David wrote, "[t]he record reflects that Father was living in a five-bedroom house with his wife and stepchildren where there was room for his two children with Mother. He was employed full time and the family had sufficient income to support the children." (3)

Morales v. Rust, 228 N.E.3d 1025 (Ind. 2024), reh'g denied (Apr. 22, 2024). Authored opinion.

Holding(s): The Court reversed the trial court and remanded the case with an order to enter judgment in favor of Appellants on all claims. The Court "f[ou]nd the minor requirements of the Affiliation Statute reflect an elegant balancing of First Amendment interests and are thus constitutionally sound." (3) The court’s decision primarily focused "primarily on the weighing of First Amendment 'rights of association' of both Appellants and Appellee[.]" (2) The Court first held that Rust satisfied standing and found his claims ripe. Next the Court found that the Affiliation Statute did not violate the First Amendments right to association. The Court found that it "imposes a minor, reasonable and nondiscriminatory restriction on Rust’s First Amendment rights, which is justified by the State’s interests, it satisfies Anderson-Burdick standard." (30) 

The Court looked to the applicable portions of the First Amendment and found support for its conclusions in López Torres, 552 U.S. at 203 (citing White, 415 U.S. at 781). In  López Torres "candidates who failed to secure party nominations" due to "election law that 'required parties to select their candidates for the Supreme Court" brought suit challenging these laws. " (11) "Justice Scalia, writing for the Court, reasoned these challengers were 'in no position to rely on the right that the First Amendment confers on political parties to structure their internal party processes and to select the candidate of the party’s choosing.' Id. at 203" (12) 

Background: John Rust of Seymour sought to be a candidate on the May 7, 2024, Republican primary ballot for U.S. Senate. However, his last vote in a Republican primary was in 2016, and he had not voted in the Republican primaries for the previous years nor voted as a Democrat in several other elections. As a result, Rust could not qualify under Option A of the Affiliation Statute and needed party certification under Option B. Jackson County Republican Party Chair Amanda Lowery refused to certify his party membership due to his voting history. Rust sought preemptive relief from the Marion Superior Court to ensure he would be included on the May primary ballot. The trial court blocked the statute's enforcement, deeming it unconstitutional. The decision was appealed.

Rules:

•  The Affiliation Statute requires that "a would-be party-affiliated candidate must establish their party affiliation by one of two ways: (A) having voted for the party with which they claim affiliation in the two most recent primary elections in which they voted (“Option A”); or (B) filing a certification from their county party chair affirming their membership in the party (“Option B”). Id. § 3-8-2-7(a)(4)." (4)
• "The balancing test from Anderson requires three inquiries: First, the Court must ‘consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments.’ Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). Second, the Court ‘must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed [by the law].’ Id. Third, in weighing the rights burdened and the state’s interests, the Court ‘also must consider the extent to which those [state] interests make it necessary to burden the plaintiff’s rights.’ Id. (4)