Monday, June 15, 2015


"in the absence of fraud ( accidental or intentional)?
the public interest..
cited by  Adam Henry

White v. Indiana Democratic Party

963 NE 2d 481 - Ind: Supreme Court, 2012 - Google Scholar
... I. Statutory Framework for Challenging the Election of State Officers. Pre-election
challenges to a candidate's eligibility are governed by Title 3, Article 8 of the Indiana
Code. See Ind.Code §§ 3-8-8-1 to -8 (2005 & Supp.2011). ...
procedure for statewide office;  again:
White v. Indiana Democratic Party, 963 NE 2d 481 - Ind: Supreme Court 2012
failure to file a proper  candidates form; can 2(?)- AND- economic interest form - is incorrect and incomplete disclosure..
(A) The person declared nominated or elected does not comply with a specific constitutional or statutory requirement set forth in the petition that is applicable to a candidate for the office.

he Democratic Party filed its challenge under Section 3-12-11-3(b)(4)(A) by alleging that White, "[t]he person declared nominated or elected," did "not comply with a specific constitutional or statutory requirement set forth in the petition that is applicable to a candidate for the office." Ind.Code § 3-12-11-3(b)(4)(A).

II. Indiana Law Strongly Disfavors Post-Hoc Disenfranchisement of Voters

The Indiana Constitution guarantees that "[a]ll elections shall be free and equal." Ind. Const. art. 2, § 1. Consistent with this guarantee, this Court has always been wary of overturning the will of the voters who have freely and willingly cast their ballots. See, e.g., Burke v. Bennett, 907 N.E.2d 529 (Ind.2009) ("This application of the Indiana disqualification statute is consistent with the longstanding respect for the right of the people to free and equal elections ... and the reluctance of this Court to remove from office a person duly elected by the voters."). We liberally construe the statutes governing post-election contests "in order that the will of the people in the choice of public officers may not be defeated by any merely formal or technical objections.'" Pabey v. Pastrick, 816 N.E.2d 1138, 1148 (Ind.2004) (quoting Tombaugh v. Grogg, 146 Ind. 99, 103, 44 N.E. 994, 995 (1896)).
Even where facts are alleged that might if later proven render a candidate ineligible, "[t]he existence of the fact which disqualifies, and of the law which makes that fact operate to disqualify, must be brought home so closely and so clearly to the knowledge or notice of the elector, as that to give his vote therewith indicates an intent to waste it."Oviatt v. Behme, 238 Ind. 69, 74, 147 N.E.2d 897, 900 (1958) (quoting People ex rel. Furman v. Clute, 50 N.Y. 451 (1872)). Those voters who are lawfully qualified to participate in our democratic process "may not be disenfranchised except by their own willful or deliberate act to the extent that one who did not receive the highest vote cast may still be declared elected." Id. at 74-75, 147 N.E.2d at 900.
The Recount Commission had these principles in mind when it concluded that White was properly qualified to assume the office of Secretary of State. (Recount Commission's Add. at 15-16.) The question 487*487 before us is therefore whether this action of the Commission was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" and "substantially prejudiced" the Indiana Democratic Party, Ind.Code § 3-12-10-18 (2005), such that we should judicially nullify the votes of the hundreds of thousands of Indiana citizens who cast their ballots for White. We conclude that it was not, because the Indiana Democratic Party's challenge was untimely.
The recount and contest procedures of Chapter 11 create two periods of time in which to bring a petition for a contest or recount: one immediately following a primary election and another immediately following a general election.[5] This window closes for a losing candidate fourteen days after the election and seventeen days after the election for the losing candidate's political party. Ind.Code § 3-12-11-2(a)-(b).
A challenge brought in the intervening time between these two periods must comply with the provisions addressing the removal of a candidate's name from the ballot. SeeInd.Code §§ 3-8-8-1 to -8. These provisions provide for a challenge "(1) questioning the qualification of a candidate to seek the office; and (2) setting forth the facts known to the voter concerning this question." Ind.Code § 3-8-8-3(c). As we detailed above, the challenge must be filed with the Recount Commission no later than the seventh-fourth day before the general election. However, these same statutes also expressly provide for the possibility that a pre-election challenge cut off by the sixty-day rule may be revived or continued after the election and operate to disqualify an elected candidate.See Ind. Code § 3-8-8-8.
This is the route that would have been open to the Indiana Democratic Party in this instance. To be sure, the allegations about White found their way into the press after the deadlines had passed for pre-election challenges that seek to remove a candidate's name from the ballot. See Ind. Code §§ 3-8-8-3(b), -7(a). At oral argument, however, the Commission reasonably observed that the exercise of more due diligence by the Democratic Party might have made a pre-election challenge possible.*********After all, none of the filings at issue—not White's voter registration, not the Certificate of Nomination, nor White's Declaration of Candidacy—were confidential or sealed. In fact, the discrepancy was discovered by a private citizen, presumably acting without the aid or benefit of a statewide party's resources and experience, and the Democratic Party has pointed us to nothing in their briefs to demonstrate the impossibility of their discovering White's registration issues at an earlier date.*********

Our conclusion is that the Code places a burden on political campaigns to investigate and vet their opposition before the pre-election time limitations expire, but that is better than the alternative: that a challenger might ignore a known (or knowable) disqualification challenge before the election, wait to see who won at the polls, and then seek to set aside the results of the democratic process. Such a result is inconsistent with free elections and respect for voters' expressed preferences.
Here, the allegations of White's registration impropriety arose before the election and were made public by private citizens, the media, and by the Osili campaign and by the Democratic Party. It is likely that the average voter was aware that there were concerns about White's voter registration history at the time of the election, but we will not, on the basis of the present petition, judicially disenfranchise voters who went to the polls aware of what were at that moment only allegations. The fact that criminal charges were filed after the election and resulted in convictions (appeals still pending) does not alter that conclusion.



We therefore reverse the decision of the trial court and affirm the Commission's dismissal.
DICKSON, J., concurs in result with separate opinion.
DICKSON, J., concurring in result.
I agree that it was correct to dismiss the petition for election contest and thus join my colleagues in the Court's decision to reverse the trial court and affirm the Commission, but my conclusion is based on different grounds.


The Indiana Democratic Party brought this petition, contesting the election of Charlie White, under Indiana's statutory election contest procedures which permit a challenge when a person elected "does not comply with a specific constitutional or statutory requirement ... applicable to a candidate," Ind.Code § 3-12-11-3(b)(4)(A). The petition asserts a violation of Indiana Code Section 3-8-1-1(b) requiring White to be "registered to vote."[1] The Court concludes that such a challenge cannot be brought after the election is held because the Court interprets the applicable election contest statutes to require such a challenge to be brought before the election.
I do not share the Court's view that the applicable statute, Indiana Code Section 3-12-11-3(b)(4)(A), does not permit a post-election challenge. To the contrary, the election contest statute explicitly envisions a post-election challenge. It expressly permits persons to contest the "election of a candidate," Ind.Code § 3-12-11-1(a) (emphasis added)—i.e., the person "declared... elected," Ind.Code § 3-12-11-3(b)(4)(A)—up to 14 "days after election day," Ind.Code § 3-12-11-2(a) (emphasis added).[2] The plain language of the statute allows a petitioner to challenge, as a ground for contesting the election of a candidate, whether the person elected failed to comply with a "statutory requirement... applicable to a candidate." Ind. Code § 3-12-11-3(b)(4)(A) (emphasis added). I find that such language reflects a clear legislative intent that the election contest statute authorizes a challenge to an elected candidate's eligibility to have been491*491 a candidate in the first instance. Thus, I cannot join the Court's view that the use of the present tense in "does not comply" operates to nullify explicit contrary statutory language and clear intent.
In addition, I do not find Burke v. Bennett, 907 N.E.2d 529 (Ind.2009), to be relevant to today's case. In Burke, the election was contested on grounds that a person was ineligible to be a candidate under the federal Little Hatch Act only if the candidate "wouldviolate it by becoming or remaining a candidate." 907 N.E.2d at 532. We held that this requirement applied only to a "future" violation of the Act and could not be used retrospectively. Id. Thus, we found that Bennett was not disqualified under the statute because "From the time Burke filed his election contest action to Bennett's anticipated assumption of the position of Mayor, it is undisputed that Bennett was no longer a candidate." Id. The language of the Little Hatch Act, which was determinative to our decision in Burke, is not implicated in the present case.
In contrast, the statutory prerequisite that a candidate for Indiana Secretary of State be a registered voter imposed by Indiana Code Section 3-8-1-1(b) is a substantive qualification for office, not a mere procedural regulation governing the implementation of constitutionally valid eligibility qualifications. Unlike the requirement that a voter present an ID when voting to verify that they satisfy the voting qualifications prescribed in our Constitution, the statutory requirement that a candidate for Secretary of State be registered to vote requires an eligibility qualification absent from the Constitution.

For this reason, I conclude that the legislature's attempt to impose an additional eligibility qualification—requiring a candidate for this position to be "registered to vote," Ind.Code § 3-8-1-1(b)—is violative of the Indiana Constitution and thus cannot serve as a basis upon which to contest a candidate's eligibility for election to the office of Secretary of State. The election contest petition was thus properly dismissed.
[1] As a result of this course of conduct, White was indicted in Hamilton County on seven criminal counts that included fraudulent voter registration, perjury, fraud on a financial institution, voting outside of precinct, casting a fraudulent ballot, and theft. A jury subsequently found him guilty of six of those seven counts, and his appeal is presently pending.
[2] This decision seems to have been made by voice vote, with no particularized written findings or conclusions. (Recount Commission's App. at 126-34.)
[3] White and the Recount Commission appealed this ruling to the Court of Appeals and the Indiana Democratic Party sought transfer of jurisdiction to this Court pursuant to Indiana Appellate Rule 56(A). White v. Ind. Democratic Party, 946 N.E.2d 1171 (Ind.2011). We assumed jurisdiction and dismissed White and the Commission's appeal because the trial court's order did not constitute a final judgment. Id. at 1172.

[4] This Code section previously provided that if the Recount Commission found a candidate ineligible to serve in office, then the runner-up would be declared the winner. Ind.Code § 3-12-11-25 (2005). But during the 2011 legislative session, and while this litigation was pending, the General Assembly added language providing that if this circumstance arose again, the vacancy would be filled by gubernatorial appointment of an individual from the same political party as the ineligible winner. Act of May 13, 2011, P.L. 225-2011, § 78, 2011 Ind. Acts 3276-77; Ind.Code § 3-12-11-25 (Supp.2011).

Wilson v. Montgomery County Election Bd., 642 NE 2d 258 - Ind: Court of Appeals, 1st Dist. 1
the State has a legitimate interest in the qualifications of candidates. Taylor, 616 N.E.2d at 387

  Wilson does not have the privilege to vote for someone not qualified to be a candidate for the office, even himself, because the State has a legitimate interest in the qualifications of candidates. Taylor, 616 N.E.2d at 387.

The Election Board was to administer the latter election law within Montgomery County and was to decide all questions concerning the validity of Wilson's declaration of candidacy. The Election Board properly did so when it decided that Wilson was disqualified for candidacy and that his name should not be placed on the ballot.

Taylor v. State Election Bd., 616 NE 2d 380 - Ind: Court of Appeals, 1st Dist. 1993 
 De Veau v. Braisted (1959), 363 U.S. 144, 160, 80 S.Ct. 1146, 1155, 4 L.Ed.2d 1109. The legislature's aim here was not to punish 
384*384 past activities but to regulate elected officials and candidates based upon their general characteristics, one of which is trustworthiness. The public considers trustworthiness to be a relevant and basic qualification of persons who serve the citizens as elected officials. See Bell, 371 F. Supp. at 223.

In the present case, the aim of the disqualification is not punishment but is regulation of a present situation based upon trustworthiness. De Veau, 363 U.S. at 160, 80 S.Ct. at 1155Bell,371 F. Supp. at 223See Hawker v. New York (1898), 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002


Revised Statutes of 1843, sec. 79, p. 999, which declared that any person who might thereafter be duly convicted of the crime of treason, murder, rape, arson, burglary, robbery, man-stealing, ********forgery or wilful and corrupt perjury, should ever after such conviction be deemed infamous, and, among other disabilities, be incapable of giving evidence in any court of justice. Id. at 55-56, 279 N.E.2d at 212-213 (quotingGlenn v. Clore (1873), 42 Ind. 60) (emphasis supplied). *********
Thus, it is quite clear that I.C. XX-X-XX-XX permits, for purposes of 
385*385 impeachment, the introduction of the record of convictions for the crimes of treason, murder, rape, arson, burglary, robbery, kidnapping, forgery and wilful and corrupt perjury; furthermore, the trial court cannot exclude such evidence. Id. 258 Ind. at 57, 279 N.E.2d at 213.
So that at the time of the adoption of the present State Constitution, the words infamous crime must have been understood by the framers of that instrument as embracing not only crimes punishable by imprisonment in the penitentiary, but also all such offenses as were subject to the penalty of the loss of civil political privileges.
X FELONIES; INFAMOUS CRIMES ( high crimes and misdemeanors)
The 1843 statute used in Ashton does not define those crimes that are "infamous crimes" for the purposes of Ind. Const. art. II, § 2. As our supreme court has stated:
While it is true that the revised statutes of 1843 declared that certain crimes should be deemed infamous ..., yet this provision cannot be regarded as conclusive of the question of what crimes were then understood to be infamous. R.S., 1843, § 79, p. 999.
So that at the time of the adoption of the present State Constitution, the words infamous crime must have been understood by the framers of that instrument as embracing not only crimes punishable by imprisonment in the penitentiary, but also all such offenses as were subject to the penalty of the loss of civil political privileges.
Id. at 285, 61 N.E. at 673 (emphasis original).
One jurisdiction has analyzed the use of the term "infamous crime," and the analysis is helpful to a determination of what that general term means in our state constitution:
For a long time prior to the declaration of independence, and before the adoption of the federal constitution, there were, as then understood, two kinds of infamy, — the one based on the opinion of the people respecting the mode of punishment, and the other in relation to the future credibility of the culprit. Eden, P.L. c. 7, § 5.
* * * * * *
[The nature of the crime as understood at common law] at one time obtained considerable foothold in the federal courts ...
But this doctrine has since been expressly disapproved by the supreme court of the United States, where it has been decided that any crime which is punishable by imprisonment for a term of years is an infamous crime ...
Likewise, Indiana courts also look to the punishment inflicted to determine whether a crime is an "infamous crime." In Crampton, the court noted that the following definition of "infamous crime" had been adopted in this State: a crime punishable for a term of years in the penitentiary at hard labor. Crampton, 193 Ind. at 556, 139 N.E. at 362. Further, inasmuch as imprisonment in a state penitentiary or prison with or without hard labor being an infamous punishment, a crime punishable by such imprisonment is an "infamous crime." Mackin v. United States (1886), 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909.
A "felony conviction" means a conviction, in any jurisdiction at any time, with respect to which the convicted person might have been imprisoned for more than one (1) year. I.C. XX-XX-X-X. Criminal recklessness is a class D felony and therefore meets this definition. I.C. XX-XX-X-X. Thus, each of Taylor's class D felony convictions was a felony which was punishable by imprisonment for a term of years. Each was, therefore, an infamous crime. See e.g., Baum, 157 Ind. 282, 61 N.E. 672See also, Crum v. State(1897), 148 Ind. 401, 47 N.E. 833 (at common law all felonies were infamous crimes; case which stated that "[n]ot all felonies render the perpetrator of them infamous" was based upon a statute under the old constitution, R.S. 1843, p. 999, section 79, and p. 719, section 261; decisions cited are no longer, if ever, controlling in the matter under consideration). The trial court correctly concluded that Taylor's disqualification did not constitute improper disenfranchisement due to his conviction of an infamous crime.
The so-called right to hold office is not a natural or inherent right. It is a privilege which arises from the organization of our civil society. If there is nothing in our fundamental law guaranteeing the privilege, then the people, through their official agency, the legislature, may take it away.
Taylor cites two Indiana cases, each of which quote from People ex rel. v. Clute (1872), 50 N.Y. 451, 10 Am.Rep. 508:
The existence of the fact which disqualifies, and of the law which makes that fact operate to disqualify, must be brought home so closely and so clearly to the knowledge or notice of the elector, as that to give his vote therewith indicates an intent to waste it. The knowledge must be such, or the notice brought so home, as to imply a willfulness in acting, when action is in opposition to the natural impulse to save the vote and make it effectual. He must act so in defiance of both the law and the fact, and so in opposition to his own better knowledge, that he has no right to complain of the loss of his franchise, the existence of which he was wantonly misapplied.
 According to State law, Taylor was disqualified from holding his elected office because he had committed a felony.
The State has a legitimate interest in the qualifications of candidates

 The State has a legitimate interest in the qualifications of candidates, see e.g., Meeks v. Tallahatchie County (1987), Miss., 513 So.2d 563, 568; and the same is true about their subsequent disqualifications. Indiana Code Section 3-8-1-5(3)(B) is reasonably necessary to accomplish the legitimate objective of disqualification because it regulates elected officials based upon their general characteristics, an area in which, as noted above, the public considers trustworthiness to be a relevant and basic qualification of persons who serve the citizens as elected officials.

invalid argument construed- refers to a general election vs a partisan primary election. also- little hatch act irrelevant  in this case
Burke v. Bennett, 907 NE 2d 529 - Ind: Supreme Court 2009

THE QUALIFIED CANDIDATE- HENRY SHOULD BE DISQUALIFIED.Pursuant to Indiana Code § 3-12-8-1, an Indiana election contest action permits a post-election challenge to the winning candidate. The post-election remedy is available if the winning candidate "was ineligible." Ind.Code § 3-12-8-2(1). As relevant to this action, an election contest petition must state that the person elected "does not comply with a specific constitutional or statutory requirement set forth in the petition that is applicable to a candidate for the office." Id. § 3-12-8-6(a)(3)(A). A trial court, after hearing a petition "alleging that a candidate is ineligible," must declare as elected "the qualified candidate who received the highest number of votes and render judgment accordingly." Id. § 3-12-8-17(c) (emphasis added).
Matter of Drury, 602 NE 2d 1000 - Ind: Supreme Court 1992
*1011 The requirement that judges report their financial transactions is designed to protect the litigants and lawyers who appear before such judges. Statements of Economic Interests alert parties to the potential prejudices of judges, thereby creating a checks and balances system which promotes an objective judiciary and enhances the perception of fairness in the courts. Failure to correctly report financial transactions as required is more than a bureaucratic misstep: it is a breach of the system by which we, as judges, maintain our honesty.

1] Jud. Canon 5 provides in relevant part:
(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.
(4) Neither a judge nor a member of his family residing in his household should accept a gift, bequest, favor, or loan from anyone except as follows:
(c) a judge or a member of his family residing in his household may accept any other gift, bequest, favor, or loan only if the donor is not a party or other person whose interests have come or are likely to come before him, and, if its value exceeds $100, the judge reports it in the same manner as he reports compensation in Canon 6C.
[2] Jud. Canon 3 provides in relevant part:
The judicial duties of a judge take precedence over all his other activities. His judicial duties include all the duties of his office prescribed by law. In the performance of these duties, the following standards apply:
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned... .
[3] Jud. Canon 1 provides in relevant part:
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective without any limitation upon the Supreme Court in the exercise of its power of general superintendence, whether statutory or inherent, in areas not delineated in the Code.
[4] Jud. Canon 2 provides in relevant part:
A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Wyatt v. Wheeler, 936 NE 2d 232 - Ind: Court of Appeals 2010
Wyatt's challenge to Ellspermann's eligibility for the primary election is implicitly also a challenge to her eligibility for the general election, which has not yet taken place. 

Here, Ellspermann asserts that Wyatt's appeal is moot because his original complaint to the IEC challenged only her eligibility for the primary election, and the primary election has occurred. We disagree. Wyatt's challenge to Ellspermann's eligibility for the primary election is implicitly also a challenge to her eligibility for the general election, which has not yet taken place. Furthermore, Ellspermann is cross-appealing the Marion Superior Court's denial of her request for attorney's fees against Wyatt. The determination of the merits of Wyatt's challenge to Ellspermann's candidacy has a direct bearing on Ellspermann's ability to prevail on her cross-appeal. Thus, Wyatt's appeal is not moot.See Union Twp., 706 N.E.2d at 187 (determining that an appeal was not moot because the appellee's counterclaim for costs and damages depended in part on considering the validity of the appellant's claim).
Having addressed Ellspermann's procedural claims, we turn to the merits of Wyatt's appeal.
FILING ERROR: (IN THIS CASE accidentally put R instead of Dfor last primary filed..
also- bad faith, frivolous, groundless, award of  attys fees.
We disagree with Ellspermann's reasoning. Although we are affirming the Marion Superior Court's judgment on the merits of Wyatt's claims, we have determined that his claims are not moot or barred by laches. Furthermore, Wyatt has presented a good faith and rational argument on the merits throughout this case. Indeed, Ellspermann concedes that, at the least, she made a "mistake" amounting to "harmless error" in filling out her declaration. Appellee's Br. p. 24. In addition, there is no evidence that Wyatt is pursuing this action to harass or maliciously injure Ellspermann. For these reasons, Wyatt's petition for judicial review was not frivolous. See Grubnich v. Renner, 746 N.E.2d 111, 119 (Ind.Ct.App.2001), trans. denied (affirming a trial court's denial of attorney's fees because the legal issues were complex and the Court could not "impute frivolous conduct" to the appellant). In addition, based on the governing statute and Ellspermann's acknowledgement that she made a "mistake" in filling out the form, we cannot conclude that a reasonable attorney would consider Wyatt's claim to be unworthy of litigation, even if the claim is ultimately without merit. Consequently, Wyatt's litigation of his petition for judicial review after the primary election was not unreasonable. See id. at 119-120 (concluding that the appellant's argument was not unreasonable even though the appellant may have misinterpreted the law). Thus, the Marion Superior Court did not abuse its discretion by denying Ellspermann's request for attorney's fees.
On a related subject, Ellspermann asks this Court to order Wyatt to pay her appellate attorney's fees. Pursuant to the governing rule, "The Court may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court's discretion and may include attorneys' fees." Ind. Appellate Rule 66(E). We will assess appellate damages only against an appellant who in bad faith maintains a wholly frivolous appeal. Harness v. Schmitt 924 N.E.2d 162, 168 (Ind.Ct.App.2010). A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious. Id.
243*243 Here, we have found that Wyatt's appeal is without merit and have affirmed the Marion Superior Court's judgment, but we cannot conclude that this appeal is frivolous or that Wyatt has maintained this appeal in bad faith. Consequently, we deny Ellspermann's request for appellate attorney's fees. See id. at 169 (declining to award appellate attorney's fees to an appellee because the appellant's claims were not "utterly devoid of all plausibility").
For these reasons, we affirm the Marion Superior Court's judgment in all respects.
NAJAM, J., and VAIDIK, J., concur.
Gaddis v. McCullough, 827 NE 2d 66 - Ind: Court of Appeals 2005

The unsuccessful candidates brought their action under the election contest statute, Indiana Code ch. 3-12-8. To succeed under the election contest statute, the unsuccessful candidates must do more than show technical irregularities in the election process. Rather, they must prove facts showing errors in the printing of ballots, errors in programming of voting equipment, voting equipment malfunctions, or "a deliberate act or series of actions" that "mak[e] it impossible to determine the candidate who received the highest number of votes." Ind.Code § 3-12-8-2. Technical violations of election law do not suffice to make out a claim under the contest statute unless they make it impossible to determine the winner of the election. See id. "[S]tatutes providing for contesting elections `should be liberally construed in order that the will of the people in the choice of public officers may not be defeated by any merely formal or technical objections.'" Pabey v. Pastrick, 816 N.E.2d 1138, 1148 (Ind.2004) (quoting Tombaugh v. Grogg, 146 Ind. 99, 44 N.E. 994, 995 (1896)), reh'g denied.


MICROVOTE GENERAL v. Indiana Election Com'n, 924 NE 2d 184 - Ind: Court of Appeals 2010

3. overturning elections GENERAL ELECTIONS
Indiana courts are highly reluctant to overturn the results of an election because of alleged procedural irregularities. As our supreme court explained some time ago:
The purpose of all election laws is to secure a free and honest expression of the voter's will. Statutes controlling the activities of political parties, party conventions, and primaries, and providing for the manner in which the names of candidates may be put upon the ballots, have for their only purpose the orderly submission of the names of candidates for office to the electors to the end that the electors may know who are candidates and have a free opportunity to vote for their choice, and that the ballots may not be incumbered by the names of those who have no substantial support. Theelection commissioners are public officers. In an action against them, brought before an election, involving the names of the candidates to be placed on the ballot by them, the statutory provisions referred to are treated as mandatory, and they will be enjoined from placing a name upon the ballot that has not been submitted to them pursuant to the statute, but, after theelection commissioners have acted and placed a name upon the ballot, and after the election, the provisions of the statute are considered directory only, and the names of candidates will be treated as having been legally placed upon the ballot by the election board, "unless an essential element of the election is affected, or there is an express declaration in the statute that the act is essential to a valid election, or that its omission will render the election void. The purpose of the law and the efforts of the court are to secure to the elector an opportunity to freely and fairly cast his ballot, and to uphold the will of the electorate and prevent disfranchisement. In the absence of fraud, actual or suggested, statutes will be liberally construed to accomplish this purpose."
Lumm v. Simpson, 207 Ind. 680, 683-84, 194 N.E. 341, 342 (1935) (quoting State ex rel. Harry v. Ice, 207 Ind. 65, 71, 191 N.E. 155, 157 (1934)). "This must be treated as the settled law of this state." Roeschlein v. Thomas, 258 Ind. 16, 33 n. 6, 280 N.E.2d 581, 591 n. 6 (1972). To disenfranchise voters after an election "because of a mere irregularity or a mistaken construction of the law by a party committee or electioncommissioner would defeat the very purpose of all election laws." Lumm, 207 Ind. at 684, 194 N.E. at 342.
There is no allegation here of any fraud in Burns's candidacy or in the November 7 general election, nor any assertion or evidence that he failed to comply with every statute governing elections and qualifications for a circuit court judge, save one. However, nothing in Indiana Code Section 3-13-1-15 expressly states that a failure to strictly comply with it voids the result of an election or that the place of filing of the CAN-29 form is an essential element of an election. Instead, it is apparent that the statute's primary purpose is to provide a means for orderly and timely preparation of ballots for a general election. Once the ballots are in fact prepared and an election is held using those ballots, it would defeat the purpose of elections laws generally to overturn the results of the election and disenfranchise the voters who used the ballots.
Burns clearly was the Democratic Party's chosen candidate for Cass County 884*884Circuit Court judge. That choice was communicated accurately to Cass County voters. They elected Burns to office. He is qualified to hold that office. The "eminently practical doctrine" formally know as "`de minimis non curat lex' . . . proclaims that the law does not redress trifles." D & M Healthcare, Inc. v. Kernan, 800 N.E.2d 898, 900 (Ind.2003). "[I]t is the courts' way of saying `So what?'" Id. If there is no "what" and no practical consequences flowing from the technical violation of some law, the courts do not provide relief to ordinary litigants. Id. At this point, the Division can point to no practical consequences of Burns's CAN-29 form having been filed with the Cass County clerk rather than the Division. Under the holdings of cases such as Lumm and Roeschlein, as well as the general doctrine of "de minimis non curat lex," we decline to reverse the trial court's granting of the permanent injunction requiring Burns' placement on the ballot, the effect of which would be also to reverse the results of the November 7, 2006 generalelection.


We decline to disenfranchise the voters of Cass County by overturning their decision that Burns should be their circuit court judge, based on a technical violation of a law that had no practical effect on the validity of the November 7, 2006 general election. We affirm.
BAILEY, J., and VAIDIK, J., concur.
[1] One of these voters, Scott Kraud, is a Republican; the other, John Davis, is a Democrat.

[2] Meagher also is a nominal appellant in this appeal. However, this court granted Meagher's motion to join the brief of the appellees Burns, Kraud, and Davis.
Matter of Drury, 602 NE 2d 1000 - Ind: Supreme Court 1992

Respondent's argument ignores Indiana's requirement of an appearance of impartiality by all entities empowered with adjudicative authority. See, City of Mishawaka v. Stewart(1974), 261 Ind. 670, 310 N.E.2d 65. This requirement is especially applicable to this state's judges, as our Code of Judicial Conduct repeatedly makes clear.

We agree with the Masters' finding of clear and convincing evidence that Respondent, by soliciting, accepting and failing to report the $2,000 loan, violated Jud. Canons 1, 2, 3(C), 5(C)(1), and 5(C)(4)(c). We find Respondent should not have sought or accepted the loan.
Once he did accept it, he should have disqualified himself from all cases in which Yosha's law firm was involved. At the least, Respondent should have disclosed the loan to the other parties and attorneys involved in any lawsuit over which Respondent presided which involved Yosha's law firm. Respondent also was obligated to report the loan in 1986. Respondent's failure to report constituted willful misconduct.

We generally agree with the Masters' findings. We find clear and convincing evidence that Respondent, in misrepresenting the source of the loan on his Statement of Economic Interests, violated:
(1) Jud. Canon 5(C)(4)(c), which requires judges to report loans of more than $100 from individuals, and
(2) Prof.Cond.R. 8.4(C).
We further find such activities constituted willful misconduct.


II. The Sanction

Indiana judges may be disciplined or forced to retire if they engage in any of the following:
(1) willful misconduct in office;
(2) willful misconduct unrelated to the judicial office that brings such office into disrepute;
(3) conduct prejudicial to the administration of justice, including the repeated failure to adhere to the rules of procedure; or
1009*1009 (4) violation of the Code of Judicial Conduct, the Rules of Professional Conduct, or other professional rules duly adopted by theIndiana Supreme Court.
Admis.Disc.R. 25(III)(A)(3), (4), (6), (7).
We have found clear and convincing evidence that Respondent has engaged in willful misconduct in office, in willful misconduct unrelated to the judicial office that brings the office into disrepute, and other violations of the Code of Judicial Conduct and Rules of Professional Conduct. Admis.Disc.R. 25(III)(A)(3), (4), and (7).
Upon a finding of judicial misconduct, the Court may impose any of the following professional disciplinary actions: removal, retirement, suspension, discipline as an attorney, limitations or conditions on the performance of judicial duties, reprimand or censure, fine, assessment of costs and expenses, or any combination of the above sanctions. Admis.Disc.R. 25(IV)(A). Removal on the basis of the Commission's recommendation is appropriate where the judge engages in "willful misconduct in office, willful or persistent failure to perform his duties, habitual intemperance, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute." Ind. Code 33-2.1-6-4 (West 1983).
In support of its recommendation for Respondent's removal and discipline as an attorney, the Commission asks this Court to consider:
(1) Respondent committed multiple violations.
(2) Respondent committed repeated violations.
(3) Respondent's violations involved falsification of documents filed in his judicial capacity.
(4) Respondent persisted in his misconduct after public proceedings were initiated.
(5) Respondent displayed a lack of candor during the the course of these proceedings.
(6) Respondent's responsibility for the letter exhibits a lack of remorse and a retaliatory and deceitful posture against Commission witnesses, indicating he is unwilling to meet the high standards of conduct by which he is bound.
The Commission also requests an order preventing Respondent from seeking anyIndiana judicial office for a period of time deemed appropriate by the Court. The Commission further seeks to recover the costs of this proceeding.
Respondent responds by claiming the recommended sanction is disproportionate to the violations. He blames poor judgment and claims innocent mistakes, but he denies any willful misconduct. He asserts the Code of Judicial Conduct is confusing and open to conflicting interpretations.
As further mitigating circumstances, he claims the only harm resulting from his actions was with respect to "perception." He also suggests this Court should be sensitive to constitutional issues created by Respondent's re-election after these charges were initiated.
In imposing the sanction of removal, we are mindful that the voters of Boone County most recently elected Respondent as Circuit Court judge in 1990 after 14 years on the bench. However, even Respondent recognizes this Court's constitutional power to discipline judges.

interesting link:  

The Resolution of Election Disputes: Legal Principles That Control Election Challenges

BH Weinberg - 2008 -
This book grew out of a series of seminars that were presented in Monrovia, Liberia, in late
July, 2005. In the seminars, United States state court decisions were used to illustrate the
legal principles involved in election dispute adjudication (Liberia's law is based on US law ...
reviewed/read briefly

Wilson v. Montgomery County Election Bd.

642 NE 2d 258 - Ind: Court of Appeals, 1st Dist., 1994 - Google Scholar
... IC 3-6-5-31, if the county election board, after affording due notice and an opportunity for a hearing,
determines that a person has engaged or is about to engage in an act or practice that constitutes
or will constitute a violation of a provision of Title 3 of the Indiana Code or of a ...

federal code:  Section 1623 [the false declaration statute  
  United States v. Bell, 371 F. Supp. 220 - Dist. Court, ED Texas 1973
United States v. Bell, 371 F. Supp. 220 - Dist. Court, ED Texas 1973

[1] Whoever under oath in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

The defendant's motion to dismiss the indictment in this criminal action raises issues, apparently of first impression, regarding the alleged ex post facto application of the recently enacted statute concerning false declarations before a grand jury or court.[1]
221*221 In its indictment, the United States charges that the defendant, Fred Louis Bell, in statements before a federal grand jury in 1968 and a federal district court in 1971, made "irreconcilably contradictory declarations material to the point in question" in violation of the false declarations statute. 18 U.S.C.A. § 1623(c). The government alleges that the first statement was made under oath on November 12, 1968, before a federal grand jury hearing evidence concerning a bank robbery, and that the second statement was made under oath on June 10, 1971, following the defendant's indictment, in a criminal action in federal district court.[2] Since the statute under which he is charged did not become effective until October 15, 1970 — after his first statement in 1968 but before his second statement in 1971 — the defendant contends that its application to him in this criminal action is ex post facto and requires dismissal of the indictment. The court agrees.

Enacted to supplement the general criminal statute governing perjury,[3] the false declaration statute is
intended to facilitate Federal perjury prosecutions and establishes a new false declaration provision applicable in Federal grand jury and court proceedings. It abandons the so-called two-witness and direct evidence rule in such prosecutions and authorizes a conviction based on irreconcilably inconsistent declarations under oath. As amended, [this statute] also permits recantation to be a bar to prosecution if the declaration has not substantially affected the proceeding or it has not become manifest that the declaration's falsity has been or will be exposed.
1970 U.S.Code Cong.Admin.News, pp. 4007, 4008; see also pp. 4023-4024.
In considering the effect of this statute in light of the law governing the application of ex post facto laws, the United States concedes that the false declaration statute is penal in nature; that it increases the maximum punishment previously available under the general perjury statute from imprisonment for five years and a $5,000 fine to imprisonment for five years and $10,000 fine; and that it changes the evidentiary procedure from that required under the general perjury statute, enabling the government to rely on the less onerous proof by way of irreconcilably inconsistent declarations rather than the two-witness and direct evidence rules. The government argues, however, that since the second statement was made after the new law, and the first statement was made before the new law, the operation of the false declaration statute is not entirely retrospective and thus, as applied, is not ex post facto.

Secondly, as a supplement to the general perjury statute, this law is clearly punitive, rather than regulatory. As stated recently by the Second Circuit, the purpose of the perjury law is
to keep the process of justice free from the contamination of false testimony. It is for the wrong done to the courts and the administration of justice that punishment is given, not for the effect that any particular testimony might have on the outcome of any given trial.

(b) This section is applicable whether the conduct occurred within or without the United States.
(c) An indictment or information for violation of this section alleging that, in any proceedings before or ancillary to any court or grand jury of the United States, the defendant under oath has knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false, need not specify which declaration is false if —
(1) each declaration was material to the point in question, and
(2) each declaration was made within the period of the statute of limitations for the offense charged under this section.
In any prosecution under this section, the falsity of a declaration set forth in the indictment or information shall be established sufficient for conviction by proof that the defendant while under oath made irreconcilably contradictory declarations material to the point in question in any proceeding before or ancillary to any court or grand jury. It shall be a defense to an indictment or information made pursuant to the first sentence of this subsection that the defendant at the time he made each declaration believed the declaration was true.
(d) Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.
(e) Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence.
18 U.S.C.A. § 1623 (hereinafter referred to as "the false declaration statute.")


[3] having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.
Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined not more than $2,000 or imprisoned not more than five years, or both.
18 U.S.C.A. §§ 1621, 1622.

No comments:

Post a Comment