dcroach@yahoo.com DCRoach60@Gmail.com
WEB PAGE:
http://dcroach60.wix.com/davidcroachdemocrat
see links:
google: dcroach.blogspot.com
David Roach Democrat Mayor
X-Wire2012.blogspot.com
X-Wire.blogspot.com
auth&appr;PD4 Roach4Mayor Comm. DCRoach Treas.
The city and several social-service agencies will work together to improve emergency shelter during extremely hot or cold weather.
Mayor Tom Henry and representatives from the Salvation Army, Rescue Mission, United Way of Allen County, Park Center, and Just Neighbors Interfaith Homeless Network signed a one-year agreement Thursday that will take effect July 1, with renewal subject to evaluation by all parties. The pact calls for the city to take the lead in activating the Winter Contingency/Emergency Shelter Plan in response to the temperature, wind chill, and/or any other emergency weather situation. Weather factors would include temperatures of 10 degrees or below zero and wind chills of zero or below.
The city's Community Center and/or McMillen Park Community Center will be utilized as daytime warming and cooling stations as needed, and the Salvation Army will serve as the lead agency among the partners, which will set protocol and for behavior of clients and staff, as well as curfews and grounds for dismissal at the shelter.
The Rescue Mission will provide additional overnight accommodations for single men until its space is exhausted. The Salvation Army will provide shelter overnight for single men and single women. The Salvation Army and Just Neighbors will work together to determine emergency space for families and couples, and the Salvation Army and the Rescue Mission will provide transportation from warming shelters or other resource locations to the shelter sites. In extreme cases, the Fort Wayne Police Department may be asked to provide transportation.
Although the city has provided warming and cooling shelters in the past, Henry acknowledged "we can do better so we don't go into crisis mode." The system is designed to accomodate up to 2,500 people.
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TEXT OF M.O.U. ( MEMORANDUM OF UNDERSTANDING)
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MEMORANDUM OF UNDERSTANDING
The City of Fort Wayne and Winter Contingency/Emergency Shelter Plan Partner
Agencies (Salvation Army, Rescue Mission, United Way, Park Center and Just
Neighbors Interfaith Homeless Network)
This memorandum outlines the primary responsibilities of the above parties in the
implementation of the Winter Contingency/Emergency Shelter Plan in Fort Wayne, Ind.
These organizations will work cooperatively to provide the response and resources to
individuals needing shelter from health-threatening conditions related to extreme winter
weather in Fort Wayne, Ind.
This agreement will be in effect from July 1, 2015 to June 30, 2016. Renewal of the
agreement is subject to evaluation by both parties.
Partner Agencies AGREE TO:
The Salvation Army shall serve as the “lead agency” among partners. It will set
protocol and expectations for behavior of clients and staff, as well as curfews and
grounds for dismissal at the shelter.
Shelter: The Rescue Mission will provide additional overnight accommodations for
single men until its space is exhausted. The Salvation Army will provide shelter
overnight for single men, single women. The Salvation Army and Just Neighbors will
work together to determine emergency space for families and couples.
Transportation: The Salvation Army and the Rescue Mission will provide
transportation from warming shelters or other resource locations to the shelter sites.
In extreme cases of need, the Fort Wayne Police Department may be asked to provide
transportation.
Food: Clients needing overnight shelter will be allowed and encouraged to eat at the
Rescue Mission during its regular meal times.
Blankets and bedding: Will be provided by the Salvation Army and/or the Rescue
Mission
Staff: Professional staff will be “in charge” and will direct or dismiss volunteers. Park
Center will provide Outreach Team members to help connect clients to services.
Volunteers: Will be designated volunteers from a partner agency.
Collaborate with all partners to identify a central spokesperson for media inquiries
and updates. 2-1-1 will be updated frequently.
Collaborate, data share and share metrics between and among members of the Winter
Contingency/Emergency Shelter group
City of Fort Wayne AGREES TO:
Take the lead in activating the Winter Contingency/Emergency Shelter Plan. The City
will seek flexibility and support from Partner Agencies as to when the Plan is
activated. At the current time, the Plan would be activated because of temperature,
wind chill, and/or any other emergency weather situation. Weather factors would
include temperatures of 10 degrees or below and wind chills of zero or below.
Lead media outreach. The City’s Public Information Office will notify media and the
public that the plan has been activated. The Public Information Office will also lead
social media/website activities to keep the community informed.
Direct the City of Fort Wayne’s Community Center and/or McMillen Park
Community Center to be utilized for warming stations and cooling stations as
determined by the Mayor, as needed.
Development and implementation of outreach and engagement plan for referral
agencies and prospective clients for the Emergency Shelter program.
Collaborate, data share, and share metrics between and among members of the Winter
Contingency/Emergency Shelter Plan group
________________________________________ _______________
Thomas C. Henry, Mayor Date
City of Fort Wayne
________________________________________ _______________
Partner Agency – Salvation Army Date
________________________________________ _______________
Partner Agency – Rescue Mission Date
________________________________________ _______________
Partner Agency – Just Neighbors Date
________________________________________ _______________
Partner Agency – Park Center Date
________________________________________ _______________
Partner Agency – United Way Date
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ROACH v ACEB—THE APPEAL: This matter is finally taking place this morning at 10 am I Judge Levine’s chambers. Well, sort of---the pending matter isn’t the Appeal, but rather a Motion to Dismiss the Appeal. For the record, I haven’t talked a lot about the remaining election Contestations because it puts a lot of added pressure on the litigants in those matters, especially the pro se Petitioners (i.e. the individuals that filed the Contestation). For the most part, I’m waiting for these Contestations to conclude before discussing their significance, in my opinion, as well as their outcomes. Roach v ACEB is not a Contestation, however, it is an appeal of an administrative hearing—specifically the February hearing held by the ACEB to discuss candidate challenges.
In that matter of Roach v ACEB---all I can say is wow, wow and WOOOW. (shaking head) First, Tim Pape as a member of the ACEB should have recused himself in all of Roach’s claims, but most especially those involving Mayor Henry. Why? Because Pape is the managing partner of the law firm of Carson Boxberger, that law firm contributes significantly to Henry’s campaign, and receives a significant share of the legal work regarding municipal contracts. There is simply no way that Pape could remain reasonably objective in this matter. With Pape not recusing himself, the entire process was tainted where Roach was concerned.
Second, during the February hearing on the Challenges raised against multiple Mayoral (4) and City Council At-Large (3) candidates---only one candidate lawyered up and that was Mayor Henry. Not only did he lawyer up, but he had two lawyers representing him.
Third, the ACEB changed their process without any advance notice---going from an investigative agency in the years leading up to and including 2014 (Kelty, 2007; Scheibenberger, 2010; Schrader, 2011; me, 2012; Haigh, 2014) and then suddenly in 2015 become a non-investigative/administrative agency. Not only that, but they shifted the burden of proof required from the Challengee (Schrader, 2011) back to the Challenger. (Now, in all fairness, I agree with the premise that the proof should be on the Challenger, but I don’t agree with changing policy and not advertising that policy change.) The ACEB activities get a lil hinkier in how they handle evidence---just this year alone!! In February, they required Roach, as the Challenger, to have physical evidence with him at a hearing. He had provided the ACEB with electronic evidence, but the ACEB rejected that. Because Roach “didn’t have” evidence, the ACEB rejected and dismissed all but one of his Challenges. In April, I filed a Complaint noting several candidate errors and omissions and told the ACEB that I would have evidence to present at a hearing. The ACEB denied me a hearing because I provided them with no pre-hearing evidence. Huh???
Fourth, at the February hearing—all parties were sworn in under oath, under penalties of perjury. In the matter of Roach v Kevin Brown---the ACEB never required Brown to address the CAN-12 irregularities that Roach was challenging. Those matters were completely ignored and then dismissed—for lack of evidence. Are you getting this---they ignored the matter completely, never even addressed it themselves, but yet they dismissed it for “lack of evidence”?? In the matter of Roach v Rick Stevenson—Roach raised the issue of Stevenson’s marriage, which Stevenson denied. The ACEB ruled that Stevenson’s sworn testimony under oath was all that was needed. But then the ACEB turned around and in Roach v Tommy Schrader---Roach presented verbal testimony as to Schrader’s name, Schrader never showed up to defend himself, and the ACEB had been involved in litigation in 2011 and either knew or should have known that Schrader’s legal name was Thomas and not Tommy. But they dismissed the matter for “lack of evidence”?? Perhaps the cream of the crop irony is in the matter of Roach v Tom Cook---Cook admits his business interests under oath. His CAN-12 form shows that he failed to list these business interests as the form requires. But the ACEB still dismisses the matter. Why?? Yep, “lack of evidence.” No offense, but has the ACEB collectively lost its mind?
And then there’s the matter of Roach v Mayor Henry --- Its unclear what Henry’s legal name is. Various sources show the Mayor’s name as either Thomas Charles or Thomas Christopher or my personal favorite---thanks to geneology sites like Ancestor.com, which rely on information obtained from libraries with geneology departments (our very own ACPL)---which lists the Mayor as Tc C Henry. Henry won’t produce a birth certificate despite being asked several times. No offense---it’s a birth certificate. What is the big deal?? Produce it and get it over with already. My guess is the Mayor has two middle names. Hey, he’s Catholic and was born in the 50’s when Catholic parents gave both a middle name and a “Christening” name. (To those born after the 50’s, that is now known as your Confirmation name.)
The bigger issue, to me anyways, is the CAN-12 form. The CAN-12 form is the Statement of Economic Interest in which the Mayor and his spouse are expected to lists all their income and business interests. When candidates run for office in one year, they have to list their income and business interests from the previous year—meaning 2015 candidates have to release information from 2014. In 2014, the Mayor’s wife owned and operated the Green Frog. And how do we know this?? Because in the middle of 2014, her family hosted a huge, well-publicized media bonanza celebrating her “retirement from the Green Frog” (of which the public was invited and many of you have Facebook pics of) and its transition to “new owners.” The ironic thing is---the Mayor’s wife still owns the real estate on which the Green Frog is located, so even though the business entity known as the Green Frog has been transferred---a different company owned by the Mayor’s wife collects rent payments from the Green Frog. The Mayor himself owns an insurance company, Gallant Group, and he failed to report that. (But to Mayor Henry’s credit, at least he remembered to list his income from being the Mayor of Fort Wayne---unlike nearly all of Fort Wayne City Council or the current Mayor of Woodburn. Oops?!!)
Putting aside all the above ACEB-related irregularities—its time to focus on the judicial procedural irregularities. And no folks, you just can’t make this stuff up. This matter was FINALLY scheduled for today, June 18th , but before it got to this point, there has been quite the flurry of pre-litigation activity.
This is an appeal of the Allen County Election Board’s decision of February 18th---a decision made and delayed for 4 months!! Judge Felts recused himself in the matter, meaning that Roach and the ACEB had to agree on an attorney. They couldn’t agree on one. So after Judge Felts order the Clerk of Court (twice…not once, but TWICE) to select a judge in the matter, she selected recently re-elected Judge Levine. (Bear in mind that the Clerk of Court is a member of the ACEB.)
The ACEB requested a Continuance. The Continuance was granted and the matter was scheduled for after the election on May 11. Then after the May 5th Primary, the ACEB moved to have the Appeal dismissed. Why? Because the elections were already had and the point of the appeals was moot. What?!?!? A person is on the ballot who flat out did not report all of their economic interests, may not have accurately reported their legal name, and the point is moot? I don’t think so. Not in the interest of true justice anyways.
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I figure this whole contestation hearing will be over about this quick.. (metaphorically speaking; comparing it to a fictional movie scene- NOT literally - of course. damn local scandalmongrs and serial slanderers; libelers defamers, bullies and haters.. sigh.. less than 30 minutes, for sure.. im guessing.. faster than a Domino's delivery..
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HENRY'S CAN -42
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LETS PUT THIS IN PERSPECTIVE- APPLYING FOR ANY JOB WITH THE CITY -
FILL OUT THE APPLICATION: https://mss.cityoffortwayne.org/MSS/employmentopportunities/ApplicationEntry.aspx
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SEE IF YOU CAN FILL THIS OUT PROPERLY AND CORRECTLY AND TRUTHFULLY AND ACCURATELY, FIRST.. THEN APPLY FOR MAYOR.
IF YOU CANT EVEN DO THAT- WELL AS DONALD TRUMP SAYS "YOU'RE FIRED"
OH AND "SHOW US THE BIRTH CERTIFICATE"
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http://roach4mayor.blogspot.com/2015/06/election-laws-legal-research-google.html
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EVIDENCE OF RICO; CONSPIRACY, TAX EVASION; WIRE FRAUD; ILLEGAL GAMBLING; PROMOTING PROFESSIONAL GAMBLING; POSSESSION OF ILLEGAL GAMBLING DEVICES; AND MAINTAINING A NUISANCE/DIVE BAR; VIOLATION OF CITY DRUG HOUSE ORDINANCE( INCLUDES ILLEGAL GAMBLING); ETC
ELECTED OFFICIAL- CITY COUNCILMAN ALSO INVOLVED BY ASSOCIATION. "ONE BIG POT OF CASH"
"it cost me a fortune"- Cindy Henry; Spouse of Mayor Henry
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FOR THE RECORD- IM A PAUPER. AND A MILITARY VETERAN WITH A NAVY MEDAL FOR OVERSEAS SERVICE IN A WAR ZONE.
IVE BEEN BLACKLISTED; BLACK BALLED; AIRBRUSHED OUT OF THE HISTORICAL RECORD; LIBELED AND DEFAMED CONTINUALLY BY THE "666 W Main Street Media" ( thats their address- well 600; but..)
for years now. AND the local 3rd district and allen County democrat party central committee hacks.. Im not a tea bag a-hole so that rules
out the local GOP( hah! as if..)
IM LUCKY IF I CAN GET A JOB AS A DOG POOPER SCOOPER.. thanks to these rotten people.. But hey- why let haters and bullies wreck your "cool" and your KARMA? "Because I'm Happy" and I "Shake It Off"
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I know i am right on this issue; its NOT GOING AWAY- and whomever wins in November- this issue of Perjury; and not being to fill out a job application properly- and so on- wont end.. I WILL PREVAIL. Why? because im too stupid to give in or give up.
as general McAuliffe said at Bastogne- surrounded and out manned and out gunned by the Nazis- at the battle of the Bulbe; WW2- the Brigadier general of the 101 s airboren told the German General when asked if he woudl surrender- His Response "NUTS" theres a "rest of the story" story to this, but its profane and unprintable at the moment.
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Henry's CAN-12 is PERJURED and Henry MUST be disqualified
Henry's CAN-42 IS PERJURED and Henry MUST be disqualified
subsequently- his CFA reports are illegal due to the fact that HENRYIS DISQUALIFIED; his paperwork is perjured and fraudulent; and as such- HENRY MUST be charged with election law crimes.
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 Title3 of the IndianaCode or of a ...
x [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. x
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.
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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.
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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.")
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[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.
Sec. 8. A statement must set forth the following information for
the preceding calendar year:
(1) The following information for each employer of the filer and each employer of the filer’s spouse:
(A) The name of the employer.
(B) The nature of the employer’s business.
For purposes of this subdivision, “employer” means any person from whom the filer or the filer’s spouse received more than thirty-three percent (33%) of the filer’s or the filer’s spouse’s income.
(2) The following information about any sole proprietorship owned or professional practice operated by the filer:
(A) The name of the sole proprietorship or professional practice.
(B) The nature of the business of the sole proprietorship or professional practice.
(3) The name of any partnership or limited liability company in which the filer or the filer’s spouse is a member and the nature of the business of the partnership or limited liability company. (4) The name of a corporation (other than a church) of which the filer or the filer’s spouse is an officer or a director and the nature of the corporation’s business.
As added by P.L.90-2012, SEC.3.
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Indiana Code > Title 3 > Article 8 > Chapter 9 – Statements of Economic Interests for Local and School Board Offices
Indiana Code 3-8-9-6. Failure to include statement; rejection of declaration of candidacy; petition of nomination; declaration of intent to be a write-in candidate, or certificate of candidate selection
Sec. 6. The circuit court clerk shall reject a declaration of
candidacy, petition of nomination, declaration of intent to be a write-in candidate, or certificate of candidate selection that does not include the statement.
As added by P.L.90-2012, SEC.3.
Sec. 2. As used in this chapter, “filer” refers to an individual who
files a statement of economic interests under this chapter.
As added by P.L.90-2012, SEC.3.
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Indiana Code 3-8-9-4. Applicability; statement of economic interests; requirement to file
Sec. 4. (a) This section does not apply to a candidate for either of
the following:
(1) Judge of a circuit, superior, probate, or small claims court. (2) Prosecuting attorney of a judicial circuit.
(b) A candidate for a local office or school board office shall file a written statement of economic interests as provided in this chapter. As added by P.L.90-2012, SEC.3. Amended by P.L.76-2014, SEC.24.
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Indiana Code 3-8-9-5. Statement of economic interests; when to file
Sec. 5. An individual required to file a statement under section 4
of this chapter shall file the statement as follows: (1) With the individual’s:
(A) declaration of candidacy under IC 3-8-2 or IC 3-8-5; (B) petition of nomination under IC 3-8-2.5 or IC 3-8-6;
(C) certificate of nomination under IC 3-10-2-15 or
IC 3-10-6-12;
(D) statement consenting to be a replacement candidate under IC 3-8-6-17;
(E) declaration of intent to be a write-in candidate under
IC 3-8-2-2.5; or
(F) certificate of candidate selection under IC 3-13-1 or
IC 3-13-2.
(2) When the individual assumes a vacant elected office under IC 3-13-7, IC 3-13-8, IC 3-13-9, IC 3-13-10, IC 3-13-11, or IC 20-23-4-30. A statement filed under this subdivision must be
filed not later than noon sixty (60) days after the individual assumes the elected office.
As added by P.L.90-2012, SEC.3. Amended by P.L.194-2013, SEC.32; P.L.76-2014, SEC.25.
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X TO MAKE A LONG STORY SHORT:
CONTESTATION -- THE ISSUES: The Contestation below basically focuses on the following issues:
1. That a candidate who fails to use their legal name on the Declaration of Candidacy form (CAN-42) cannot be placed on the ballot.
2. That a candidate who fails to completely disclose all the required information on the Statement of Economic Interest form (CAN-12) cannot be placed on the ballot.
3. That it is the candidate's responsibility to correctly complete these forms, which have to be completed under oath.
4. That it is the ACEB's responsibility to correct the above matters when the above matters come to their attention.
X and that 2015 DEMOCRAT MAYORAL candidates Thomas C. (Christopher/Charles/Cobblepott?) "Tom" Henry ; Thomas Meyer "Tom" Cook, and Richard "Rick" Stevenson- failed to do so. As did Republican Mayoral candidate William "Bill" Collins" X as did city council at large candidates Thomas Allen "Tommy" Schrader; Kevin R Brown; and Daniel "Dan" Lobdell
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WHY ITS IMPORTANT?
THIS is the standard which Judges are held to- we like to think of Judges as sober, responsible, reasonable, and intelligent people; imbued with insight and wisdom; and ability to make wise judgements.
x Im not a judge; nor would i necessarily want to be- but If our elected politicians at least tried to uphold THESE HIGH STANDARDS- it would be a good start:
Matter of Drury, 602 NE 2d 1000 - Ind: Supreme Court 1992 JUDGES AND ECONOMIC INTERESTS *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.
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SO WHY NOT OUR MAYOR AND OTHER CITY ELECTED OFFICIALS AND OTHERS?
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SUCH AS MAYOR HENRY?
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HENRY'S CAN-12- STATEMENT OF ECONOMIC INTEREST FILED WITH ALLEN COUNTY ELECTION BOARD
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THIS IS NOT "TRUE OR COMPLETE"- SO SIGNING AND "AFFIRMING"- A "NON-FACTUAL CAN 12"- IS PERJURY
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PERJURY IS A CLASS D FELONY BY INDIANA CODE
X Mayor Henry "HENRY" Henry's CAN 12- STATEMENT OF ECONOMIC INTERESTS is neither TRUE NOR COMPLETE - as it omitted significant economic interests.
2. signing and AFFIRMING an election document CAN-12 as "true and complete" when it is in fact NOT TRUE AND COMPLETE is perjury, under Indiana criminal code title 35 Article 44 chapter 2 section 1 IC 35-44-2-1 Perjury Sec. 1. (a) A person who: (1) makes a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true; or (2) has knowingly made two (2) or more material statements, in a proceeding before a court or grand jury, which are inconsistent to the degree that one (1) of them is necessarily false; commits perjury, a Class D felony
AND: the falsity of a statement may be established sufficient for conviction, by proof that the defendant made irreconcilably contradictory statements which are material to the point in question. As added by Acts 1976, P.L.148, SEC.4. Amended by Acts 1977, P.L.340, SEC.55; Acts 1981, P.L.281, SEC.4.
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ANYONE CHARGED AND CONVICTED OF A CLASS D FELONY; OR ANY OTHER FELONY- IS DISQUALIFIED/INELIGIBLE TO SERVE IN OFFICE; CONTINUE THEIR TERM IN OFFICE; SHALL BE REMOVED FROM OFFICE..
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ONE COULD MAKE THE SUGGESTION THAT ONE LARGE FAMILY- =IS= AN ECONOMIC INTEREST- CASH IS FUNGIBLE. "ONE BIG POT"
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HENRY'S ECONOMIC INTERESTS- UNDISCLOSED ON CAN-12 STATEMENT-
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HENRY'S SPOUSE- CINDY
UNDISCLOSED ECONOMIC INTERESTS PER CAN-12
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SCREEN SHOT- CINDY HENRY STATES ECONOMIC INTEREST- UNTIL AUG 2014. CAN -12- REQUIRES STATEMENT OF ECONOMIC INTERESTS OF PREVIOUS YEAR- OF 2014
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HENRY'S SPOUSE'S ECONOMIC INTERESTS ARE NOT INCLUDED. FOR THE RECORD- CINDY HENRY SAID HER BAR MADE $700k PER YEAR FOR THE PAST SEVERAL YEARS. (DOES THAT INCLUDE ILLEGAL GAMBLING REVENUES FROM CHERRY-MASTER MACHINES OR RICO? AND WAS THIS WHILE HER HUSBAND WAS STILL A CITY COUNCILMAN-AN ELECTED OFFICIAL WHO HAS ADMITTED FREQUENTING HIS SPOUSES "DIVE BAR" BY DEFINITION?
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NOTE DATE OF ARTICLE- SOLD IN AUGUST OF 2014. WHAT WAS THE SELLING PRICE? FOLLOW THE MONEY...
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ADDED MY 2 CENTS WORTH. AUGUST 6TH, 2014
AUGUST 6TH 2014- IS WITHIN THE TIME FRAME OF THE CAN 12- FOR 2014, FILED IN JANUARY 2015
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OH- DID I MENTION THIS POLICE REPORT I FILED ON THE GREEN FROG/ THE HENRYS AND HIS SPOUSE CINDY HENRY ( aka "the Frog Lady")
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you all remember CHERRY MASTERS? those illegal gambling machines in nearly every bar( henrys); night clubs; tavern and veterans halls?
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nOTE THE DATE OF SALE: 2014 UNDISCLOSED ON 2015 CAN-12- STATEMENT OF ECONOMIC INTERESTS..
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NOTE:
HENRYS EMAIL ADDRESS- TCHenry 1975@comcast.net
is the same one used by his SPOUSE
FOR DEMOCRAT PARTY POLITICAL ACTIVITIES..
A POLITICAL PARTY IS A CORPORATION/ BUSINESS UNDER IRS AND DEPT OF REVENUE TAX LAWS; POLITICS IS BIG BUSINESS IN THIS COUNTRY..
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COMMINGLING?
MY CONCERN IS HENRY'S SPOUSE- is working in conjunction with the MAYOR TO SELL INSURANCE ON THE SIDE OF ELECTED OFFICE, AS A SIDE BUSINESS. UNDISCLOSED IN CAN-21 FORM.
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GREEN FROG ATC LIQUOR/BUSINESS LICENSE INFORMATION
2012- S&H GREEN FROG INC.. remember that name
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2014- PATI TAX /PROPERTY OWNERSHIP RECORDS
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DID HENRYS SPOUSE SELL OR NOT SELL THE GREEN FROG BAR?
THE RECORDS SAITH NAY. NO.
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S&H GREEN FROG LLC 2013-2014
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2015 PATI TAX RECORD- TAXES PAYABLE FROM 2014
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THIS SCREENSHOT SHOWS NO TRANSFER OR PROPERTY OCCURRED.
SO WHO EXACTLY OWNS THE GREEN FROG? OR WAS THAT ALL A LIE- GET SOME NEW KIDS TO RUN THE DAY TO DAY; ETC; AND TAKE A SKIM- RENT? PROFITS? WHO OWNS THE LICQUOR LICENSE? THATS THE FOLLOW THE MONEY ON THIS ONE..
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700K A YEAR IS A LOT OF CASH TO GIVE UP..for a one lump sum sale..
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GOOGLE SAYS HENRYS SPOUSE STILL RETAINS THE ECONOMIC INTEREST
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FURTHER UNDISCLOSED ECONOMIC INTEREST
RENTAL? INVESTMENT PROPERTY
formerly owned by Fort Wayne Daisies (womens league baseball team) Dottie Collins. property is located across the street from the newly constructed Franklin Park
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HENRY AND HIS SPOUSE HAVE 2 THATS TWO- HOMESTEAD EXEMPTIONS. SO- WHAT IS HIS REAL VOTERS REGISTRATION ADDRESS CONSIDERED AS? AND WHAT ABOUT THAT CONDO AT THE HARRISON HENRY AND HIS SPOUSE SPOKE OF MOVING INTO AS SOON AS IT WAS OPEN? OR WAS THAT ALSO PERJURY?
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2014-2015 taxes
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2013-2014 taxes:
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LOCATION LOCATION LOCATION
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THE MAYORS /HENRYS AND HIS SPOUSES SCHOMBURG RESIDENCE
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HOMESTEAD EXEMPTIONS ON 1929 JESSIE AVENUE ==AND-==
2211 SCHOMBURG
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WELL WELL WELL- WHAT HAVE WE HERE?
A FORECLOSURE PROCEEDING ON THAT 1929 JESSIE PROPERTY IN QUESTION. so whats up with that?
unload the undisclosed renatl/investment/ undeclared economic interest form for 2014-2015?
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or just some foul up? you know those henrys..
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THE ISSUE OF THE MAYOR'S BIRTH CERTIFICATE
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ALL CITIZENS OF INDIANA - IN ORDER TO REGISTER TO VOTE- MUST SUBMIT PROPER DOCUMENTATION TO REGISTER TO VOTE. AT VOTING TIME- REGISTERED VOTERS MUST SHOW A STATE ISSUED ID CARD .
NO ONE IS ABOVE THE LAW- THIS IS A SOMEWHAT OBNOXIOUS LAW. IT S STATED INTENT IS TO PREVENT "VOTER FRAUD"; BUT MORE THAN ANYTHING- CREATES OBSTACLES FOR POOR , MINORITY, ELDERLY AND YOUNG VOTERS AMONG OTHERS - MOSTLY THOSE THAT VOTE DEMOCRATIC BALLOTS AND CANDIDATES
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SO- IF EVERY REGISTERED VOTER IN INDIANA HAS TO SHOW THEIR BIRTH CERTIFICATE AND OTHER SUPPORTING DOCUMENTS TO THEIR VOTERS REGISTRATION REGISTRARS; WHY SHOULD THE MAYOR- FORT WAYNE'S HIGHEST ELECTEDD OFFICIAL - BE ABOVE THE LAW?
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THIS ISNT SOME "BAD FAITH , FRIVOLOUS, GROUNDLESS" POLITICAL STUNT- LIKE DONALD TRUMP AND BIRTHER CONSPIRACY THEORIES.
THIS IS BASED ON CONFLICTING "FACTS" OR PUBLIC RECORDS AND PUBLIC STATEMENTS MADE BY THE MAYOR AND LOCAL CREDIBLE MEDIA SOURCES..
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THE MAYORS( HENRYS)- CAN-42- DECLARATION FOR CANDIDACY ETC.
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I HARDLY THINK THE MAYORS /HENRY'S ACTIONS TO DATE- STONEWALLING, AVOIDANCE; DETERMINED AND OBSTRUCTIONIST REPETITIVE LACK OF "TRANSPARENCY. OPENNESS; AND ACCESSIBILITY"
FITS THIS DEFINITION..
I HAVE OTHER CHOICE WORDS, MOSTLY PROFANE.. for these acts; or lack there of..
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HENRY'S CAN -42
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AND if theMayors true legal full name- isnt thomas christopher henry; then the THOMAS C. HENRY listed on the ballot- which was nominated may 5th, 2015- isnt a real person; is false fictitious, fraudulent; and therefore the election results MUST BE THROWN OUT AND A NEW SPECIAL ELECTION HELD. as its impossible to determine who the true winner was..
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THOMAS CHARLES HENRY? OR THOMAS CHRISTOPHER HENRY?
WILL THE REAL THOMAS C HENRY PLEASE STAND UP?
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the MAYOR has stated the waynedale news is a tabloid, and not credible- yet he happily writes articles for them- heres 2 recent ones..
TABLOID JOURNALIST? CITY GOVERNMENT PR PUFF PIECES IN LOCAL UN-CREDIBLE SOURCE...
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may 2015
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JUNE 2015
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VARIOUS AKA'S FOR THE MAYOR-
HENRY: WHAT IS THE TRUTH MR MAYOR? STOP STONEWALLING US AND TELL US THE TRUTH..
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TWO PUBLIC RECORD REQUESTS DENIED- ASKING TO SEE A COPY OF THE ELECTED PUBLIC OFFICIALS PUBLIC RECORD AS TO HIS LOCATION OF BIRTH AND HIS TRUE LEGAL NAME AS IT APPEARS THERE ON.
HOW MANY REQUESTS DO I HAVE TO PUT IN ? 10? 20 ? 200?
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ISSUES RELATED TO MICROVOTE SYSTEMS-
ARE THESE OBSOLETE MICROVOTE SYSTEMS PROPERLY AND CURRENTLY CERTIFIED BY MICROVOTE AND THE STATE OF INDIANA FOR USE IN ALL ELECTIONS?
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MICROVOTE MACHINE RELATED CONCERNS/ISSUES AS TO CERTIFICATION:
MICROVOTE SYSTEMS
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AS TO THE VOTING MACHINE ISSUE-
There are several recent Court cases- concerning MICROVOTE MACHINES-SOFTWAFE; HARDWARE; AND FIRMWARE- as being "uncertified"; obsolete out of date.
These are readily accessible and of Interest to the Aceb- IF THEY ARE NOT INTIMATELY ACQUAINTED WITH THESE MICROVOTE COURT RULINGS ALREADY.
I would respectfully request the ACEB- to provide the following information to the Court; and the Voters :
1- to prove that the ACEB Microvote systems machines are all valid; certified and properly calibrated.
2- show that these vital delicate "computer systems/electronic devices"- are properly stored in a temperature/humidity climate controlled storage facility- and not in a "POLE BARN" where temperature extremes; humidity extremes; insects; etc- are unable to cause GLITCHES in these delicate electronic machines per standards listed by Microvote; and so on.
3- respectfulLy request the ACEB provide the court and voters- an audit of the machines in question at the precincts in question- are certified by an authorized Microvote service technician; to assure the voters there was no machine malfunctions; and if there was- to call a special election in those precincts.
4- respectfullY request the ACEB to provide to the court and the voters- proof the precinct workers were properly trained to work the pols in question as to the required operations of the Microvote machines and proper procedures..
5- respectfully request the ACEB provide to the court and the voters- the Poll books of the Precincts in question- to prove the assertion that "no one voted in these precincts May 5th, 2015"
6- 6 precincts of an arbitrary 60 precincts is 10% error, 30 precincts- is 20%.
this is unacceptable. PITIFUL LOW TURNOUT; obsolete Microvote machines ; various court cases about deceritifications..
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CONTESTATION: 02C01-1505-MI-000500 X X DUE CREDIT- ACEB CROSSED ALL THE "T"S AND DOTTED ALL THE "I'S . I RECEIVED A VERY THOROUGH REPORT IN THE MAIL WITH RESPECT TO THE VOTING MACHINES IN THE 6 PRECINCTS IN QUESTION. so- good work; on this aspect of the contestment. an essay-Ladies- in praise of our election board staff and workers- will be forthcoming soon..(ok-sometime soon)( it will sing your unsung praises.)
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X x Based on the preceding statement; and the STATES INTEREST IN ASSURING THE INTEGRITY OF THE ELECTION SYSTEM-
i respectfully request the court
to consider my new evidence presented; and original evidence in the proper legalese pro forma format.
find in my favor; uphold my original ACEB candidate challenges per Feb 18th 2015;
disqualify HENRY for ++AT LEAST 3 COUNTS++ ( one per form)AT A MINIMUM OF perjury;
AND FORWARD THESE CHARGES TO THE ALLEN COUNTY PROSECUTOR FOR PROCESSING..
AND THAT THE COURT UPHOLD MY VERIFIED PETITION FOR CONTESTMENT PER CONDITIONS AND PARAGRAPHS AS STATED..
i WOULD LIKE TO THANK THE COURT AND THE ATTORNEYS AND JUDGES FOR THEIR TIME AND PATIENCE AND FORBEARANCE AND JUSTICE IN THESE MATTERS.
I have done my due diligence in searching public records and obtaining those records that are easily accessible to average voters.
Those records that require exhaustive research at the ACEB office; the Clerk of the courts office; or at unaffordable expenses at 1 DOLLAR PER PAGE- for a "pauper"- either have been already provided; or are available via electronic EMAIL; or other methods.
Any other evidence in question; or minutiae of court procedures; etc- i apologize- im not a bar admitted law school graduate. I am a college graduate with another degree in IT- information technology.
I ask the court to NOT DISMISS THIS ACEB APPEAL; NOR MY ELECTION CONTESTMENT; and to regard this as a good faith, legal, valid, well grounded; and not frivolous filings.
I am registered active voter; a resident and citizen of Indiana; and pay taxes; there for "I am the State". We all are.
as such- we have a duty to search for justice and to seek the truth.. 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. X
i HEREBY CERTIFY I HAVE DONE ALL REASONABLE COLLEGE GRADUATE LEVEL RESEARCH AND DUE DILIGENCE IN PREPARING AND FILING THIS CONTESTMENT; AND aceb APPEAL( VERIFIED PETITION FOR JUDICIAL REVIEW. WHITTINGTON:
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TOM COOK MISC: EVIDENCE/PERJURY
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TOM COOK
FACEBOOK POSTS RE: HIS ECONOMIC INTERESTS/BUSINESS; CHARITY
"HELPING THE NEEDY"
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ARTURO LOPEZ LIVES HERE- 3112 Lafayette street
(not TOM COOK)
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TOM COOK CLAIMS TO LIVE HERE:
3112 S LAFAYETTE ST.
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GOOGLE SEARCH indicates: Arturo Lopez lives here. which is true? what is the living arrangement? lease? rent? in-kind? Other?
THE ALLEN COUNTY ELECTION BOARD WAS NEGLIGENT IN VERIFYING TOM COOKS CLAIMED RESIDENCE- WITH NO PROOF. TO CAST A PROVISIONAL BALLOT; A VOTER MUST PRESENT VARIOUS DOCUMENTS OF PROOF. I used d the analogy at the hearing of FEB 18TH- of documents required to vote- per the new state id law( people vs rokita) or the wayne township trustees office to receive assistance; or food stamps or unemployment or welfare..
but to be a politician; well- just step up sign your name here you go? WTF?
HERES THE VARIOUS REAL ESTATE; RESIDENCY STATE LAWS: ( Indiana code: title 32)
We have to hold Transients; Homeless; Derelicts; Bums; etc to some standard.
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GOOGLE MAPS STREET VIEW SEARCH RESULTS OF 3112 S LAFAYETTE:
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GOOGLE MAPS STREET VIEW TOM COOKS ALLEGED RESIDENCE. HEY! is that TOM COOK ON THE PORCH? HI TOM! nope- not him..
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AN ADDRESS ASSOCIATED WITH A GOOGLE SEARCH OF TOM COOK AND "HELPING THE NEEDY"- CONFLICTS/CONTRADICTS MR COOKS STATEMENTS OF RESIDENCE OF 3112 S LAFAYETTE ST.
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TOM COOK- PRESIDENT 3112 S LAFAYETTE ST; AND BBB REPORT:
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BBB REPORT- TOM COOK; "HELPING THE NEEDY"
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GOOGLE SEARCH RESULTS- TOM COOK AND "HELPING THE NEEDY
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phone numbers associated with "HELPING THE NEEDY"- ALSO TOM COOK FOR MAYOR WEB PAGE PHONE NUMBER- COMMINGLING BOGUS BUSINESS WITH A SLEAZY BUSINESS ( POLITICS.LOL.)
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GOOGLE SEARCH RESULT: ADDRESS LISTED ASSOCIATED WITH "HELPING THE NEEDY"- (see photo above- Arturo Lopez lives here)
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TOM COOK;S ALLEGED BUSINESS ADDRESS OF TOM COOK'S ALLEGED BUSINESS- ALLEN COUNTY PATI( Public Access Property Tax Information) internet
TAXPAYER NAME: JESSE COLLINS
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AERIAL VIEW OF SAME: TOM COOK'S ALLEGED BUSINESS
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P.A.T.I. RECORDS OF TOM COOK'S ALLEGED BUSINESS
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TOM COOK'S ALLEGED BUSINESS ADDRESS- VIA GOOGLE MAPS:
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TOM COOK'S ALLEGED BUSINESS- GOOGLE STREET VIEW
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TOM COOKS ALLEGED BUSINESS- GOOGLE STREET VIEW FROM FRONT DOOR LOOKING EAST. HANNA AND BUCHANAN ST.S
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TOM COOK'S ALLEGED BUSINESS VIA GOOGLE SEARCH RESULT:
The Court in Whittington summarized the requirements of Rule 11 as follows:
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i HEREBY CERTIFY I HAVE DONE ALL REASONABLE COLLEGE GRADUATE LEVEL RESEARCH AND DUE DILIGENCE IN PREPARING AND FILING THIS CONTESTMENT; AND aceb APPEAL( VERIFIED PETITION FOR JUDICIAL REVIEW. WHITTINGTON:
The Court in Whittington summarized the requirements of Rule 11 as follows:
1. An attorney must READ every paper before signing it.
2. He must make a reasonable pre-filing investigation of the FACTS.
3. He must research the LAW, unless he is certain he knows it.
4. The law as applied to the facts must REASONABLY WARRANT the legal positions and steps he takes. If existing law does not warrant these positions, a plausible argument for the extension of the law to the facts of the case is required.
5. It must be demonstrated, as the basis of pre-filing investigation and research, that there is a REASONABLE BASIS to name each defendant named, and to support each claim asserted. The shotgun complaint or answer, filed in the hope that discovery will produce the justification for it, is improper.
6. The adequacy of an attorney's investigation, research and legal analysis will be evaluated by the court under an OBJECTIVE STANDARD, namely, whether the attorney acted as a reasonably competent attorney admitted to federal practice. Except as to improper purpose, subjective good faith is not a defense to Rule 11 sanctions. A pure heart but an empty head is of no avail.
7. The attorney must CONTINUALLY RE-EVALUATE his positions and abandon them if they are no longer reasonably warranted.
8. An attorney must not have an IMPROPER PURPOSE, such as harassment or intimidation, in naming any defendant, asserting any legal position or taking any legal step.
9. If an attorney violates Rule 11 the imposition of some sanction is MANDATORY, although the nature and extent of the sanction is discretionary with the district court.(42)
Footnotes
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THOMAS C. ( CHRISTOPHER? CHARLES? COBBLEPOTT?) "TOM" HENRY....( humor)
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and the rest of the careless perjurers who cant even fill out a most basic 3 page "job application"; let alone a REAL JOB APPLICATION- Big box retail; fast food; corner convenience store; etc..
ever read the disclaimer/warning at the bottom of THOSE applications? you get the complete credit/background personality profile AND a drug test; AND you're AT WILL and minumum wage..
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MICROVOTE SYSTEMS 2010-
MICROVOTE GENERAL v. Indiana Election Com'n, 924 NE 2d 184 - Ind: Court of Appeals 2010
ICROVOTE GENERAL v. INDIANA ELECTION COM'NNO. 49A02-0910-CV-975.
924 N.E.2d 184 (2010)
MICROVOTE GENERAL CORPORATION, Appellant-Petitioner, v. INDIANA ELECTION COMMISSION, Appellee-Respondent.
Court of Appeals of Indiana.
March 29, 2010.
John R. Price, Price-Owen Law, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, David L. Steiner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
RILEY, Judge.
STATEMENT OF THE CASE
Appellant-Petitioner, MicroVote General Corporation (MicroVote), appeals the trial court's Order denying MicroVote's Petition for Judicial Review and Petition for Stay of Enforcement of the final agency order issued by the Appellee-Respondent, the Indiana Election Commission (IEC). The IEC's final order prohibits MicroVote from marketing, leasing or selling voting systems in Indiana for eighteen months, with additional reporting requirements for three and one-half years thereafter.
We affirm.
[924 N.E.2d 188]
ISSUES
MicroVote raises three issues on appeal, which we restate as follows:
(1) Whether the trial court erred in affirming the IEC's final order on res judicata grounds in light of a previous determination by the Indiana Secretary of State during an administrative hearing;(2) Whether the trial court erred in affirming the IEC's final order on collateral estoppel grounds; and(3) Whether the trial court erred in determining that the IEC's final order, which imposed penalties and conditions, did not exceed its statutory authority.
FACTS AND PROCEDURAL HISTORY
MicroVote is a corporation organized and doing business under the laws of the State of Indiana, with its office located in Indianapolis. The corporation supplies election equipment and electronic voting systems to forty-seven counties in Indiana. In 2005, the Indiana Legislature amended several statutes applicable to electronic voting systems and the vendors of these systems. Under the revised Indiana Code section 3-11-7.5-28(a), any previously issued approval or certification of electronic voting system issued by the IEC "expires October 1 of the year following the year in which presidential electors are elected under [I.C. § ] 3-10-2-3." As a result of this statutory revision, MicroVote's electronic voting system became decertified on October 1, 2005.
Prior to October 1, 2005, MicroVote contacted the IEC seeking clarification of Indiana Code section 3-11-7.5-28(g) and specifically as to whether it would be permissible for MicroVote to continue servicing pre-existing customers after the decertification date. This referenced statutory provision establishes that "A vendor subject to subsection (f) may continue to provide support during the period specified in subsection (f) to a county that has acquired a voting system from the vendor after the vendor certifies that the voting system to be supported by the vendor only includes hardware, firmware, and software approved for use in Indiana." Ind.Code § 3-11-7.5-28(g). Subsection (f) indicates that
If the commission finds that a vendor has marketed, sold, leased, installed, implemented, or permitted the use of a voting system in Indiana that:(1) has not been certified by the commission for use in Indiana; or(2) includes hardware, firmware, or software in a version that has not been approved for use in Indiana;the commission may revoke the approval granted under this section and prohibit the vendor from marketing, leasing, or selling any voting system in Indiana for a specific period not to exceed (5) years.
A Co-General Counsel for the Indiana Election Division (IED) responded via email, dated September 2, 2005, stating in part:
[924 N.E.2d 189]
I recognize that `installed, implement and permit the use' language in these statutes could cause you concern as this language could be interpreted to mean that even if the sale was consummated prior to the expiration of certification that the subsequent delivery and installation made pursuant to that legal contract made after the system was no longer certified, could be argued as violating the statute. I do not believe that was the intent of the legislature. [I.C. § ] 3-11-7.5-28(g) indicates inexplicitly that a vendor `may continue to provide support' to a voting system `to a county that has acquired a voting system from the vendor' after the vendor certified that the voting system to be supportedby the vendor only includes hardware, firmware, and software approved for use in Indiana.I believe the reference to acquire is the same as `sale' as used elsewhere in this section. In my view, as long as the sale was consummated while the system was certified then all further activities undertaken to implement the contract for sale and all activities to support the voting system legally sold would not result in a violation of the above statutes.
(Appellant's App. pp. 33-34). A disclaimer was inserted at the bottom of this email with an explicit warning not to rely on the legal interpretation and to seek independent legal advice.
After receiving this email and during the decertification period which commenced on October 1, 2005, MicroVote continued to conduct business in several Indiana counties, including executing contracts in nine Indiana counties for voting equipment with firmware and software versions which had been decertified, marketing its equipment throughout Indiana, public testing in forty-seven counties, and installing uncertified firmware in voting equipment in forty-seven counties.
During the same period, MicroVote also initiated the testing of its electronic voting systems, a mandatory prerequisite to apply for recertification with the IEC. Nevertheless, MicroVote was unable to immediately apply for certification as national testing authorities imposed a nation-wide moratorium on all such testing. This ban was not lifted until March 30, 2006. On April 28, 2006, the IEC approved MicroVote's application for renewal of certification of its voting software. On May 2, 2006, forty-seven Indiana counties used the then current, certified version of MicroVote's electronic voting system in the primary election held on that day.
A. ADMINISTRATIVE PROCEEDINGS BY THE OFFICE OF THE SECRETARY OF STATE
Contrary to the IED's advice, the Indiana Secretary of State and the Office of the Secretary of State (OSS) instituted administrative proceedings against MicroVote under Cause No. 06-0001-ED, which later became Cause No. 06-0003-ED, in early April of 2006, charging MicroVote with violating I.C. §§ 3-11-17-1 through 3-11-17-3 by continuing to service its customers after its equipment became decertified. On May 21, 2007, the Administrative Law Judge (ALJ) issued an order finding that MicroVote had violated Indiana's election law on multiple occasions between October 1, 2005 to April 28, 2006. He recommended a penalty of $250,000, increased by costs of $133,562.25. Thereafter on July 20, 2007, the Indiana Secretary of State, acting as the ultimate authority in the OSS proceedings, issued a Final Order Affirming in Part and Modifying in Part Administrative Law Judge's Order Granting the Office of the Secretary of State's Motion for Summary Judgment; Denying MicroVote's Motion for Summary Judgment; and Findings of Fact and Conclusions of law.
On August 20, 2007, MicroVote filed a petition for judicial review of the Secretary of State's decision. On October 2, 2007, the OSS replied by filing a motion to dismiss MicroVote's petition on the basis of an untimely filed record. The following month, on November 27, 2007, the trial court granted the OSS's motion to dismiss. On July 16, 2008, after MicroVote pursued an appeal, the court of appeals affirmed the trial court and the supreme court denied transfer.
B. ADMINISTRATIVE PROCEEDINGS BY THE IED
Before a final order was issued in the OSS proceedings, the IED filed an administrative Complaint before the IEC against MicroVote in Cause No. 2007-01. The
[924 N.E.2d 190]
Complaint alleged that MicroVote had violated Indiana Code section 3-11-7.5-28 by (1) illegally selling an uncertified voting system, (2) illegally marketing an uncertified voting system; (3) illegally installing an uncertified voting system; and (4) permitting the use of an uncertified voting system during a period from October 1, 2005 through April 28, 2006. On March 31, 2008, without conducting an evidentiary hearing, the ALJ entered his Order on Cross Motions for Summary Judgment which incorporated facts established in the proceedings initiated by the OSS against MicroVote. In its Order, the ALJ found the following issues conclusively established in the previous administrative proceedings a. MicroVote violated the Indiana election Code, Ind.Code § 3-11-7.5-4(d) by marketing its uncertified election equipment in forty-seven (47) counties.b. MicroVote violated the Indiana election Code, Ind.Code § 3-11-7.5-4(d) by selling its uncertified equipment in ten (10) counties.c. MicroVote violated the Indiana election Code, Ind.Code § 3-11-7.5-4(d) by installing its equipment in forty-seven (47) counties.d. MicroVote violated the Indiana election Code, Ind.Code § 3-11-7.5-4(d) by implementing its equipment in forty-seven (47) counties.e. MicroVote violated the Indiana election Code, Ind.Code §§ 3-22-7.5-10, 3-11-7.5-13, 3-11-7.5-20, 3-11-15-13.1 and 3-11-14-239(d) by installing election systems in forty-seven (47) counties which were inadequate to conduct a general election in Indiana since they would not allow for straight-ticket voting.
(Appellant's App. pp. 11-12). The ALJ imposed a five year prohibition against marketing, leasing, or selling voting systems in Indiana pursuant to I.C. § 3-11-7.5-28(f).
MicroVote timely submitted its Objections to the ALJ's Order of March 31, 2008. Although the IEC permitted the parties to submit additional briefing, the Commission did not conduct any further evidentiary or substantive hearing before ruling on the ALJ's Order. A single meeting was held on June 10, 2008 during which the IEC discussed the ALJ's Order with MicroVote's counsel and the IED. That same day, the IEC issued its Final Order which adopted the findings of fact and conclusions of law contained in the ALJ's Order of March 31, 2008 with a modified penalty. Instead of the five year prohibition against marketing, leasing, or selling voting systems in Indiana, the IEC reduced this prohibition to eighteen months with additional reporting requirements for the three and one-half year after the prohibition. These reporting requirements include the submission of quarterly reports to the IED with information about MicroVote's marketing, sales, and leasing activity in Indiana, and the submission of all contracts for the sale or lease of voting systems thirty days prior to their execution.
On July 18, 2008, MicroVote filed its Verified Petition for Judicial Review claiming that the IEC should have dismissed the proceedings before it based on res judicata and collateral estoppels grounds. Alternatively, MicroVote asserted that the penalty imposed was arbitrary and capricious and exceeded the IEC's statutory authority. Following briefing by the parties, the trial court entered a Final Order on May 12, 2009, affirming the IEC.
MicroVote now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. STANDARD OF REVIEW
While the legislature has granted courts the power to review the action of
[924 N.E.2d 191]
state government agencies taken pursuant to the Administrative Orders and Procedures Act, this power of judicial review is limited. LTV Steel Co. v. Griffin,730 N.E.2d 1251, 1257 (Ind.2000). A court may only set aside agency action that is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law: or (5) unsupported by substantial evidence. See Ind.Code § 4-21.5-5-14(d). While an appellate court grants deference to the administrative agency's findings of fact, no such deference is accorded to the agency's conclusions of law. LTV Steel Co., 730 N.E.2d at 1257.
II. RES JUDICATA
MicroVote contends that the trial court erred when it failed to acknowledge that res judicata barred the proceedings before the IEC since the cause, which involves the same claims and the same parties or their privies, had already been adjudicated on its merits in the proceedings before the OSS.
The doctrine of res judicata bars the litigation of a claim after a final judgment has been rendered in a prior action involving the same claim between the same parties or their privies. Small v. Centocor, Inc.,731 N.E.2d 22, 26 (Ind.Ct.App. 2000), reh'g denied, trans. denied. The principle behind this doctrine, as well as the doctrine of collateral estoppel, is the prevention of repetitive litigation of the same dispute. Id.The following four requirements must be satisfied for a claim to be precluded under the doctrine of res judicata: 1) the former judgment must have been rendered by a court of competent jurisdiction; 2) the former judgment must have been rendered on the merits; 3) the matter now in issue was, or could have been, determined in the prior action; and 4) the controversy adjudicated in the former action must have been between the parties to the present suit or their privies. Id.
When applying res judicata to administrative proceedings, Indiana courts traditionally examine whether 1) the issues sought to be estopped were within the statutory jurisdiction of the agency; 2) the agency was acting in a judicial capacity; 3) both parties had a fair opportunity to litigate the issues; and 4) the decision of the administrative tribunal could be appealed to a judicial tribunal. Weiss v. Indiana Family & Soc. Servs. Admin., Div. of Disability, Aging and Rehab. Servs.,741 N.E.2d 398, 402 (Ind.Ct.App.2000),trans. denied.
MicroVote does not dispute and the IEC agrees that the trial court properly concluded that the Secretary of State was vested with the authority to render an order in Cause No. 06-0003-ED. In addition, both parties also agree that the trial court properly determined that the order rendered in Cause No. 06-0003-ED was a final judgment on the merits for res judicata purposes. However, MicroVote takes issue with the trial court's conclusion that the claim raised in Cause No. 06-0003-ED is not sufficiently identical to the claim raised in Cause 2007-01 and with the conclusion that the parties in both Causes are different. We will evaluate each contention in turn.
A. IDENTITY OF CLAIMS
With regard to the res judicata requirement that the matter now in issue was, or could have been, determined in the prior action, the trial court found in its order
[924 N.E.2d 192]
5. Under Ind.Code § 3-11-7.5-28, the OSS does not have the right to intervene in litigation conducted by the IEC. The Secretary could not have imposed any penalties under that section, and did not do so in this Final Order. This means that the matter now in issue was not, and could not have been, determined in that suit. The issue before the OSS was should a civil penalty be imposed for a violation of elections law. The issue before the IEC was should MicroVote's certification be revoked in Indiana. This is essentially a licensing function wherein the IEC determines who may or may not market, sell, lease, install, implement, or use a voting system in Indiana. The third element of res judicata is not satisfied.
(Appellant's App. p. 19).
Disputing the trial court's finding, MicroVote contends that the critical factor in finding identical claims forres judicata is not whether two agencies have the same statutory authority to impose the same penalties for the same conduct but whether the first ruling agency has the statutory authority to make a final determination of the factual issues for which the second agency would impose additional penalties. In essence, MicroVote asserts that if identical evidence supports the issues in both actions, then there is a similarity of claims satisfying res judicata. On the other hand, the IED claims that the IEC and the Secretary of State each possess distinct statutory authority to impose different penalties. Given their distinct jurisdictional posture, the IEC and the Secretary of State necessarily evaluated different evidence to impose their sanctions.
As to res judicata, a party is not allowed to split a cause of action, pursuing it in a piecemeal fashion and subjecting a defendant to needless multiple suits. Indiana State Highway Comm'n v. Speidel, 181 Ind.App. 448, 392 N.E.2d 1172, 1175 (1979). However, two or more separate causes of action may arise from the same tortious act, and in such case a judgment on one action does not bar suit on the second.Id. In this light, the most critical question for the application of res judicata is whether the present claim was within the issues of the first or whether the claim presents an attempt to split a cause of action or defense. Biggs v. Marsh,446 N.E.2d 977, 982 (Ind.Ct.App. 1983). It has generally been said that the test for making this determination is whether identical evidence will support the issues involved in both actions. Id. See also Indiana State Dept. of Health v. Legacy Healthcare, Inc.,752 N.E.2d 185, 190-91 (Ind.Ct.App.2001).
Turning to the case at hand, we conclude that identical evidence supported the claims brought before the Secretary of State in Cause No. 06-0003-ED and the later claims pursued before the IEC in Cause No. 2007-01. In Cause No. 06-0003-ED, the Secretary of State was required to find that MicroVote had "knowingly, recklessly, or negligently s[old], lease[d], install[ed], implement[ed], or permit[ted] the use of a voting system in an election conducted in Indiana in violation of Indiana's election laws," in order to impose a civil penalty for the same. I.C. §§ 3-11-17-2; 3-11-17-3. The OSS presented evidence establishing these requirements.
Similarly, in Cause No. 2007-01, the claim was based on a violation of I.C. § 3-11-7.5-28(f) which authorizes the IEC to revoke its prior approval of a voting system and prohibit an election system vendor from marketing, leasing, or selling any voting system in Indiana for a specific period not to exceed five years if the IEC "finds that a vendor has marketed, sold, leased, installed, implemented, or permitted
[924 N.E.2d 193]
the use of a voting system in Indiana that: (1) has not been certified by the commission for use in Indiana; or (2) includes hardware, firmware, or software in a version that has not been approved for use in Indiana[.]"
Thus, given the context of the two statutes, the IEC and Secretary of State both had to first determine whether MicroVote had marketed, sold, leased, installed, implemented, or permitted the use of a voting system in Indiana contrary to law. In reaching its conclusion in Cause No. 2007-01, the IEC did not conduct an evidentiary hearing or ask the parties to submit additional evidence but instead took the findings in Cause No. 06-0003-ED and used the same evidence to impose its own penalties. Specifically, in Cause No. 2007-01, forty-eight of the forty-nine paragraphs comprising the Findings of Fact section of ALJ's March 31, 2008 order were quotations taken from orders issued in Cause No. 06-0003-ED.
Even though the main difference between the statutes is the finding of an uncertified voting system in I.C. § 3-11-7.5-28(f), the ALJ in his order of May 21, 2007 which granted the Secretary of State's motion for summary judgment nevertheless found exactly that. Specifically, the ALJ concluded:
C. MicroVote has committed at least fifty-seven (57) violations that fall within Title 31. I.C. § 3-11-7.5-4(d) states that "[a]n electronic voting system may not be marketed, sold, leased, installed, or implemented in Indiana before the application for certification of the system is approved by the commission." [I.C.] § 3-11-7.5-4(d)i. As of October 1, 2005, MicroVote did not have any electronic voting systems that were certified in the State of Indiana, since its system that was in use up to that point was statutorily decertified on October 1, 2005 and the new system was not completed until March and not certified by the [IEC] until April 28, 2006. See [I.C.] § 3-11-7.5-28(a); Findings of Fact ¶ E.28.ii. Accordingly, MicroVote did not have a product that it could legally market, sell, or lease anywhere in Indiana from October 1, 2005 to April 28, 2006.iii. Despite this fact, MicroVote marketed and sold uncertified equipment prior to the May 2006 primary election by (a) signing new sales contracts in ten counties, (b) sending out numerous pricing estimates for purchase of its equipment and (c) emailing counties with quotes and estimates for future purchases.
(Appellee's Suppl. App. pp. 36-37).
As such, the factual issues ruled on by the Secretary of State in Cause No. 06-0003-ED covered the same factual issues presented by the IED in Cause No. 2007-01. Evidence was presented and ruled on in both Causes with regard to MicroVote's marketing, sale, lease, installation, implementation or permitted use of its voting system in forty-seven counties from October 1, 2005 to April 28, 2006. The only factual difference in both proceedings is the penalty imposed. However, we agree with MicroVote that to impose any penalty under I.C. § 3-11-7.5-28(f) in Cause No. 2007-01, the IED still had to present and the IEC had to rule on the exact same evidence as that used and ruled on in Cause 06-0003-ED. In sum, in both proceedings MicroVote was penalized for the same alleged misconduct covering the same period of time based on the same evidence. Therefore, we find that the third requirement of res judicata is satisfied.
[924 N.E.2d 194]
B. PARTIES OR THEIR PRIVIES
With regard to the fourth res judicata requirement — the controversy adjudicated in the former action must have been between the parties to the present suit or their privies — the trial court ruled as follows
6. "A `party' is one who is directly interested in the subject matter and has a right to make defense or to control the proceedings and to appeal from the judgment ... [C]ourts look beyond the nominal parties and treat all those whose interest are involved in the litigation and who conduct and control the action or defense, as real parties, and hold them concluded by any judgment which may have been rendered."7. The [IEC] is established by Ind. Code § 3-6-4.1-1. It is bipartisan in composition with the Commissioners of the IEC being appointed by the Governor following nomination by the chairperson of the respective major political parties. I.C. § 3-6-4.1-2. The IEC is charged with administering Indiana election laws and governing the "fair, legal and orderly conduct of elections." I.C. § 3-6-4.1-14(a). Before a ballot card or electronic voting system is used in an election, it must be approved by the IEC. I.C. § 3-11-7-1 and I.C. § 3-11-7.5-1. The approval of electronic voting machines and their use in the State of Indiana is not made by the OSS. In addition, the OSS does not have the authority to revoke the use of a particular vendor's electronic voting system in this state. The statutory authority is only vested with the IEC to revoke a license to operate an electronic voting system in Indiana when a vendor is not in compliance with Indiana Election Law. I.C. § 3-11-7.5-26. If the IEC determines that a vendor has marketed, sold, leased, installed, implemented, or permitted the use of a voting system that has not been certified by the IEC, it is not only authorized to revoke the approval of a voting system, but may also prohibit a vendor from marketing, leasing or selling any voting system in Indiana for up to five (5) years. I.C. § 3-11-7.5-28(f). The penalty authorized under I.C. § 3-11-7.5-28(f) is a licensing decision and is different than the civil penalty permitted under I.C. § 3-11-17-1 et seq. The IEC is responsible for "Specify[ing] procedures and fees for the processing of an application from a vendor for voting systems approval and testing" under Ind.Code § 3-6-4.1-14.8. Under Ind.Code § 3-6-4.2-2(a), the Secretary of State must discharge "all ministerial duties related to the administration of elections by the state." The Secretary of State is an elected official and a constitutional officeholder. The OSS's jurisdiction over elections and election law is provided by the General Assembly. The OSS has jurisdiction over Voting Systems Violations pursuant to I.C. § 3-11-17-1 et seq. and the authority to access a civil penalty upon determination by the Secretary that a voting system violation has occurred.
[924 N.E.2d 195]
9. The IED is established within the OSS by Ind.Code § 3-6-4.2-1. It is charged with assisting both the IEC and the Secretary of State in the administration of elections. I.C. § 3-6-4.2-2(b). The IED is a bipartisan agency whose Co-Directors are appointed by the Governor following nomination by the chairperson for the respective major political parties. I.C. § 3-6-4.2-3. This division of the OSS is a hybrid office which acts independently from the OSS under the leadership of its Co-Directors and serves in a variety of roles involving the Indiana electoral process. For example, the IED assists the OSS in implementingprovisions of the Help America Vote Act. I.C. § 3-6-4.2-2.5. The IED is also charged with carrying out the policies and recommendations of the IEC. I.C. § 3-6-4.2-3. In addition, the IED independently functions to maintain a complete set of precinct maps in Indiana, provides instruction to county election boards throughout the State of Indiana concerning state and federal election laws. I.C. § 3-6-4.2-12 and 14. The IED is also independently responsible for coordinating state responsibilities under the National Voter Registration Act, certifying candidates to be placed on the ballot, and tabulating election results filed by county election boards. Finally, the Co-Directors of the IED are not hired by the Secretary nor are they members of the Secretary's Staff.10. The IED was not a party to the administrative proceedings conducted by the Secretary of State, nor did it have a right to intervene in those proceedings. Under Ind.Code § 3-6-4.2-2(a), the Secretary of State must discharge "all ministerial duties related to the administration of elections by the state." Under Ind.Code § 3-11-17-3, the Secretary of State may impose a fine of up to $300,000.00 in addition to associated investigative costs, when he finds that a voting system vendor had violated Indiana election law.11. The IEC has no authority to bring claims under Ind.Code § 3-11-17-3. It has authority to bring claims under Ind. Code § 3-11-7.5-28, which gives the IEC authority to both grant and revoke certification to voting system vendors, and to prohibit a vendor from marketing, leasing, or selling a voting system in Indiana if the IED finds that the vendor has marketed, sold, leased, installed, implemented, or permitted the use of a voting system in Indiana that: (1) has not been certified by the commission for use in Indiana; or (2) includes hardware, firmware, or software in a version that has not been approved for use in Indiana.12. The term privity describes the identity of interests that may connect persons to such an extent that one not a party to an action may nevertheless be bound by the judgment in that action.13. The OSS and the IEC are not in privity. While the OSS and the IEC have both duties related to Indiana elections, their interests (as statutorily defined) are different. The OSS seeks financial penalties against defendants who have violated Indiana election law. The IEC is responsible for granting and revoking certification of electronic voting systems. Their interests are not the same, and one should not be bound by actions involving the other.14. The IEC did not have the duty or right to participate in the administrative proceedings conducted by the OSS. The [c]ourt finds that the fourth element of res judicata has not been met because the matter adjudicated by the OSS did not involve the IEC. Therefore the parties were not the same nor was there privity present. For this reason, the IEC is not bound by the judgment of the Secretary of State in [] Cause No [] 06-003-ED.
(Appellant's App. pp. 19-22) (some citations omitted).
MicroVote contends that, at the very least, the IED was in privity with the OSS as the IED is depicted as a division of the OSS and is established within the OSS. On the other hand, the IEC asserts that because the OSS and IED are different agencies with distinct responsibilities and duties, they are not linked in privity. It maintains that the IEC and IED had no control or authority over the functions of
[924 N.E.2d 196]
the Secretary of State and, in turn, the Secretary of State does not have control or authority over the functions of the IEC or the IED when it is assisting the Commission.
The term privity describes the relationship between persons who are parties to an action and those who are not parties to an action but whose interests in the action are such that they may nevertheless be bound by the judgment in that action. Small, 731 N.E.2d at 27-28. Whereas a "party" is one who is directly interested in the subject matter and has a right to make a defense or control the proceedings, a "privy" is one who after rendition of the judgment has acquired an interest in the subject matter affected by the judgment. Smith v. Midwest Mutual Insurance Co., 154 Ind.App. 259, 289 N.E.2d 788, 793 (1972). The term includes those who control an action, though not a party to it, and those whose interests are represented by a party to the action. Small, 731 N.E.2d at 27-28. As such, an entity does not have to control a prior action, or be a party to a prior action, for privity to exist. See id. Therefore, in determining the parties for res judicata purposes, this court looks beyond the nominal parties and treats those whose interest are involved as the real parties. State v. Speidel, 181 Ind.App. 448, 392 N.E.2d 1172, 1176 (1979).
In Cause No. 06-0003-ED, MicroVote was the respondent and the OSS the petitioner, whereas in the later Cause No. 2007-01, MicroVote was again the respondent but with the IED as the petitioner. MicroVote now contends that the IED was at the very least a privy of the OSS in Cause 06-0003-ED, if not a party itself.
Statutorily, the legislature established the IED as a division of the OSS. See I.C. § 3-6-4.2-1. The other three divisions within the OSS are the business services division, the securities division, and the dealer services division. See http://www. in.gov/sos/ (last visited Febr. 11, 2010). Because the IED is the only division within the OSS that handles election issues, the only OSS personnel who could or would have been involved in Cause No. 06-0003-ED were IED personnel. Furthermore, although the Secretary of State is the sole authority to impose civil penalties, it is the IED who controls and administers the account which collects these civil penalties. I.C. § 3-11-17-6(b) & (d). At the same time, it is also this account, controlled by the IED, which provides the financial means to enforce the statutory regulations concerning the ballot card voting system, the approval of electronic voting systems, the technical oversight program, and general voting system violations, such as I.C. § 3-11-17-2 — the statute used by the OSS to impose a civil penalty on MicroVote. See I.C. § 3-11-17-6(a).
Nevertheless, although the IED is statutorily created as a division of the OSS and both appear to be intertwined, the legislature has provided differently for each entity and has given each entity its own separate authority. The IED is a bipartisan agency whose co-directors are appointed by the Governor following nomination by the chairman for the respective major political parties. See I.C. § 3-6-4.2-3. The IED independently functions to maintain a complete set of precinct maps in Indiana, provides instructions to county election boards concerning state and federal election law requirements, and reports to federal agencies in compliance with federal election laws. See I.C. § 3-6-4.2-12; -14. The IED is responsible for coordinating state responsibilities under the National Voter Registration Act, certifying candidates to be placed on the ballot, and tabulating election results filed by county election boards. I.C. § 3-7-11-1; -16; § 3-12-5-7.
[924 N.E.2d 197]
In addition, the IED is charged with carrying out the policies and recommendations of the IEC. See I.C. § 3-6-4.2-3. The IEC, in turn, is the only entity authorized to approve and revoke its approval of a voting system and is empowered to prohibit the vendor from marketing, leasing or selling any voting system in Indiana for up to five years. See I.C. § 3-11-7.5-28(f). This licensing determination is within the IEC's exclusive jurisdiction.
On the other hand, the Secretary of State is a constitutional officeholder, elected statewide. Indiana Const. art. VI § 1. The Secretary's jurisdiction over elections and election law is provided by the General Assembly. He has jurisdiction over Voting System Violations pursuant to I.C. § 3-11-17-1 et seq. and the authority to assess a civil penalty upon finding that a voting system violation has occurred, as here in Cause No. 06-0003-ED.
Based on the totality of the evidence before us, we agree with the trial court that MicroVote failed to satisfy the privity requirement of res judicata. While the OSS and the IED both have duties related to Indiana's elections, their respective duties are significantly different. Statutorily, the OSS cannot order the sanctions provided for in I.C. § 3-11-7.5-28 and the IEC could not order the penalties provided for in I.C. § 3-11-17-3. In other words, as the OSS's and IED's responsibilities are different, their ultimate interests in pursuing these responsibilities are necessarily distinct: whereas the OSS is focused on civil penalties, only the IED and IEC can impose a revocation of a previous issued license for an electronic voting system. As a result, we conclude that res judicata did not bar the proceedings before the IEC.
III. COLLATERAL ESTOPPEL
Next, MicroVote contends that the trial court erred when it failed to acknowledge that the claims asserted by the IED in Cause No. 2007-01 were premised on the same issues of law and fact which were ruled on and decided in Cause No. 06-0003-ED and therefore the IED's action should have been foreclosed entirely.1
Collateral estoppel — also referred to as issue preclusion — bars the subsequent litigation of an issue necessarily adjudicated in a former suit. Shell Oil v. Meyer,705 N.E.2d 962, 968 (Ind.1998). In that situation, the former adjudication will be conclusive in the subsequent action even if the two actions are on different claims. Bartle v. Health Quest Realty VII,768 N.E.2d 912, 917 (Ind.Ct.App. 2002), trans. denied. However, the former adjudication will only be conclusive as to those issues which were actually litigated and determined therein. Id.
Collateral estoppel does not extend to matters that were not expressly adjudicated or to matters that can be inferred from the prior adjudication only by argument. Id. The primary consideration in the use of collateral estoppel is whether the party against whom the former adjudication is asserted had "a full and fair opportunity to litigate the issue and whether it would be otherwise unfair under the circumstances" to permit the use of issue preclusion in the subsequent action. Id.
[924 N.E.2d 198]
Review of a trial court's decision regarding the use of issue preclusion is subject to an abuse of discretion standard. Id.
Collateral estoppel has been divided into two categories: offensive collateral estoppel and defensive collateral estoppel. Offensive collateral estoppel involves a situation where the plaintiff seeks to foreclose the defendant from litigating an issue the defendant had previously litigated unsuccessfully in an action with another party. Id. Defensive collateral estoppel involves a situation where a defendant seeks to prevent a plaintiff from asserting a claim which the plaintiff had previously litigated and lost. Id. The present case involves the use of offensive collateral estoppel, that is, the IEC used the determination of MicroVote's multiple violations of Indiana election law in Cause No. 06-0003-ED in its own proceedings of Cause No. 2007-01. MicroVote now disputes this application.
The offensive use of collateral estoppel has traditionally been viewed as somewhat more problematic than the defensive use of collateral estoppels. However, our supreme court has held that offensive collateral estoppel may be used, subject to certain requirements, as it tends to prevent unnecessary relitigation of issues and promotes consistent trial court judgments. Tofany v. N.B.S. Imaging Sys. Inc.,616 N.E.2d 1034, 1038 (Ind. 1993). Determining the appropriateness of offensive collateral estoppel involves two considerations: (1) whether the party to the prior action had a full and fair opportunity to litigate the issue; and (2) whether it is otherwise unfair to apply collateral estoppel to prevent relitigation of the same issue.Eichenberger v. Eichenberger,743 N.E.2d 370, 375 (Ind.Ct.App.2001).
In Tofany, the Indiana supreme court discussed the factors to be considered in a court's determination of whether offensive collateral estoppel should be utilized. Tofany, 616 N.E.2d at 1038. The court stated that:
The trial court may consider privity, the defendant's incentive to litigate the prior action, the defendant's ability to defend the prior action, and the ability of the plaintiff to have joined the prior action. When considering the defendant's incentive to litigate, the trial court may consider the interest at stake for the defendant as well as how the defendant perceived this interest. For example, did the defendant have its most experienced litigator in the prior action or, instead, did the defendant rely on a less experienced litigator? Similarly, the trial court may consider whether the forum in which the action was defended allowed the defendant to participate in the full range of discovery. For example, was the forum inconvenient thus preventing the defendant from presenting witnesses or from taking depositions.
Id. at 1038-39. Our supreme court added that these factors were not exhaustive; rather, they merely provided the framework for a court to utilize in its determinations. Id. at 1038.
In applying offensive collateral estoppel against MicroVote, the ALJ noted in his Order on Cross-Motions for Summary Judgment of March 31, 2008 that
[924 N.E.2d 199]
5. Additionally, none of the issues normally associated with an unfair application of collateral estoppel are present here. Specifically, where (a) the defendant had little incentive to vigorously litigate the first action either because the damages were small or nominal, or because future suits were not foreseeable; (b) where the judgment relied upon for estoppel is inconsistent with one or more previous judgments inwhich the defendants were successful; or (c) where procedural opportunities are available to the defendant in the latter action which are unavailable to him in the previous action and which would likely affect the result, unfairness may result. Here, MicroVote faced a significant monetary penalty in [Cause No. 06-0003-ED], had all of the procedural opportunities available to it in that action, and there is no known judgment to which this is inconsistent.6. [] All of the factors allowing for application for res judicata against MicroVote are met here. Accordingly, while the [Cause No. 06-0003-ED] cannot bar the [IEC], who was not a proper party and thus did not have the opportunity to litigate the issues in this proceeding, it does prevent MicroVote from relitigating facts established in that proceeding.7. Indeed, there are sound reasons not to re-litigate here the facts established in [Cause No. 06-0003-ED]. Obviously, to re-litigate those issues would not be the most economical way to proceed for any party. Moreover, those facts as established prevent inconsistent orders and adjudications. Of course, application of [Cause No. 06-0003-ED] can only be done if MicroVote had a full and fair opportunity to litigate that matter. Here, there is no doubt that it did. Indeed, it admits this is the case.8. In addition, MicroVote cannot genuinely [express] surprise at the [IEC] seeking to revoke its approval based, at least in part, on [Cause No. 06-0003-ED] and the facts and conclusion decided therein. In other words, the existence of that action should not trump the [IEC's] statutory authority.9. Moreover, because of the designations of both parties, the [IEC] has had an opportunity to review the record and findings and conclusions of the ALJ in [Cause NO. 06-0003-ED] and sees no reason to deviate from those findings and conclusions....
(Appellant's App. pp. 18-19) (internal citations omitted).
We agree. We find no error in the application of offensive collateral estoppel in the proceedings before the IEC. The record reflects that MicroVote had a full and fair opportunity to litigate the issue of its violations and now allowing MicroVote to relitigate of this issue would be unfair under the circumstances. Therefore, we affirm the trial court.
IV. STATUTORY AUTHORITY FOR THE SANCTIONS IMPOSED BY THE IEC
As a final argument, MicroVote contends that the trial court erred by holding that the IEC's Final Order which imposed penalties and conditions did not exceed its statutory authority.
In its Final Order, the IEC concluded as follows
After considering the record in this matter, the ALJ's Order, as well as the objection and briefs of the parties, the Commission, at its meeting of June 10, 2008, hereby affirms by a vote of 4 to 0, said ALJ's "Order on Cross-Motions for Summary Judgment" and adopts it as a Final Order in this proceeding, with the following modifications, pursuant to its authority under [I.C. § ] 4-21.5-3-29(b)(2).The modifications to the ALJ's Order are as follows:
[924 N.E.2d 200]
1. In the judgment portion of the Order, [the] ALJ [] states that: "The Division requests a five (5)year decertification and injunction. After considering the violations at issue and established in [Cause No. 06-0003-ED], and the defenses raised by MicroVotein both actions, the Indiana Election Commission revokes MicroVote's approval of its electronic voting system and prohibits MicroVote from marketing, leasing or selling any voting system in Indiana for five years, subject to the provisions in Ind.Code § 3-11-7.5-28(g), the specific dates of which shall be determined by the Commission."The Commission removes this language from the Final Order2. As its Final Order, the Commission will not rescind the approval of MicroVote's electronic voting systems.3. MicroVote is prohibited from leasing or selling any voting system in Indiana for five (5) years from the date of this order, or June 20, 2013.4. MicroVote may continue to market its products in Indiana. However, from the date of this order through December 31, 2009, MicroVote must notify prospective customers that its products may not be sold in the State of Indiana until after December 21, 2009. MicroVote must also provide any prospective customers in the State of Indiana with a copy of this Final Order.5. As of January 1, 2010, the Commission's Order of Prohibition will be STAYED for the remainder of the five (5) years, or until June 20, 2013.6. During the period the Order is stayed, MicroVote's business activities in Indiana will be subject to the following terms and conditions:a. MicroVote must fulfill all of its contractual obligations to its Indiana customers.b. MicroVote must abide by all election laws.c. MicroVote must submit quarterly reports to the Indiana Election Division (IED). Those reports must include information about all of MicroVote's marketing, sales and leasing activity in this state.d. All contracts for the sale or leasing of MicroVote systems in Indiana must be submitted to the IED thirty (30) days prior to their execution.7. From the entry of this order, any finding by the Indiana Election Commission and/or the Indiana Secretary of State that MicroVote has violated Indiana election law or any of the terms and conditions set our above will result in an immediate termination of the Stay.
(Appellant's App. pp. 51-52).
In imposing these remedial measures, the IEC relied on Indiana Code section 3-11-7.5-28 which states in pertinent part
(f) If the commission finds that a vendor has marketed, sold, leased, installed, implemented, or permitted the use of a voting system in Indiana that:(1) has not been certified by the commission for use in Indiana; or(2) includes hardware, firmware, or software in a version that has been approved for use in Indiana;The commission may revoke the approval granted under this section and prohibit the vendor from marketing, leasing, or selling any voting system in Indiana for a specific period not to exceed five (5) years.(g) A vendor subject to subsection (f) may continue to provide support during the period specified in subsection (f) to a county that has acquired a voting system from the vendor after the vendor certifies that the voting system to be supported by the vendor only includes hardware, firmware, and software approved for use in Indiana.
MicroVote now specifically claims that given the plain language of I.C. § 3-11-7.5-28,
[924 N.E.2d 201]
the IEC only has the authority to revoke the certification previously granted to prohibit a vendor from marketing, leasing, or selling any voting system in Indiana for a specific period of time. MicroVote maintains that "[s]ince the IEC did not rescind its prior approval/certification of MicroVote's voting system, it follows under the language of subsection (f) that the IEC cannot impose any prohibition." (Appellant's Br. p. 39). Alternatively, MicroVote asserts that the imposed terms and conditions which subject its business activities to the IEC's scrutiny are contrary to the statute.
Resolution of this issue requires us to interpret the statute. The interpretation of a statute is a legal question that is reviewed de novo. Sun Life Assur. Co. of Canada v. Indiana Dept. of Ins.,868 N.E.2d 50, 55 (Ind.Ct.App.2007), trans. denied. Statutory interpretation is the responsibility of the court and within the exclusive province of the judiciary. Id. The first and often the last step in interpreting a statute is to examine the language of the statute. Id. When confronted with an unambiguous statute, we do not apply any rules of statutory construction other than to give the words and phrases of the statute their plain, ordinary, and usual meaning. Id.
Turning to the merits of MicroVote's claims, we first note that the statutory language included in subsection (f) permissively grants the IEC the authority to revoke the approval issued under this section by using the word "may." In addition, the same subsection grants the IEC the power to prohibit the vendor from marketing, leasing, or selling any voting system in Indiana for a specific period not to exceed five (5) years. As such, the IEC is given discretionary power to revoke a vendor's certification and to prohibit the marketing, sale or lease of a voting system for up to five years. The IEC is not required to first revoke the approval and then to impose penalties.
Furthermore, with respect to the stay imposed by the IEC, we agree with the IEC that this possibility is provided for in the Indiana Administrative Orders and Procedures Act (AOPA). In particular, Indiana Code section 4-21.5-3-31 empowers state agencies to "stay the final order in whole or in part." This is exactly what the IEC did: instead of the five year prohibition against marketing, leasing, or selling voting systems in Indiana, the IEC reduced this prohibition to eighteen months with additional reporting requirements for the three and one-half year after the prohibition. These reporting requirements include the submission of quarterly reports to the IED with information about MicroVote's marketing, sales, and leasing activity in Indiana, and the submission of all contracts for the sale or lease of voting systems thirty days prior to their execution.
Whereas the AOPA grants the IEC the possibility to impose a stay of its penalty, we agree with MicroVote that there is no explicit statutory authority granting the IEC the right to impose reporting sanctions or `good behavior' requirements during this stayed period. However, in interpreting a statute, we not only attempt to ascertain the meaning and intention of the legislature from the specific phraseology of a statute, but we also consider the design, nature and the consequences that flow from the various interpretations. Concerned Citizens of West Boggs Lake v. West Boggs Sewer Dist., Inc.,810 N.E.2d 720, 723 (Ind.Ct.App.2004). During our consideration, we presume that our legislature intended its language to be applied logically and consistently with the underlying goals and policy of the statute.Bambi's Roofing, Inc. v. Moriarty,859 N.E.2d 347,
[924 N.E.2d 202]
353 (Ind.Ct.App.2006). Mindful of these principles, we conclude that the IEC could properly impose reporting requirements during the stayed sanction. For an agency to be able to stay the complete or part of the penalty without an ability to impose `good behavior' requirements would make the stay in effect meaningless.
Moreover, evaluating the reporting requirements themselves, we cannot say that they rise to the level of arbitrary or capricious action. See I.C. § 4-21.5-5-14(d). The initial eighteen month period of the penalty that was not stayed concluded on December 31, 2009. Accordingly, as pointed out by the IEC, the bulk of the prohibition period takes place in a year during which no statewide general or primary elections are held. The total penalty imposed is within the five year statutory period during which the IEC can impose sanctions. See 3-11-7.5-28. With respect to the specific reporting requirements imposed during the stay, we note that these conditions fall within the IEC's general authority. See, e.g., I.C. §§ 3-11-7.5-5; 3-11-7.5-7; 3-11-7.5-21. Thus, the Final Order carefully balanced the enforcement goals of the IEC with the needs of the voters and local elections officials.
In sum, we conclude that the discretionary nature of Indiana's election law statute combined with the AOPA, empowers the IEC to sanction a vendor for violating I.C. § 3-11-7.5-28 without de-certifying the vendor's voting equipment. The IEC has the discretion to impose a complete executed penalty or stay part of the penalty and impose additional reporting requirements during this stayed period.
CONCLUSION
Based on the foregoing, we conclude that the trial court properly affirmed the IEC's Final Order and the IEC's imposed penalties and conditions.
Affirmed.
VAIDIK, J., and CRONE, J., concur.
FOOTNOTES
1. In its brief, MicroVote still references the traditional requirements of collateral estoppels, i.e., identity of parties and mutuality of estoppels. However, in Sullivan v. Am. Cas. Co. of Reading, Pa.,605 N.E.2d 134, 138 (Ind. 1992) our supreme court dispensed with these rigid requirements. Instead, now, the prime consideration is whether the party against whom the prior judgment is pled had a full and fair opportunity to litigate the issue and whether it would be otherwise unfair under the circumstances to permit the use of collateral estoppel. Id.
MICROVOTE ISSUES/CERTIFICATIONS CASE LAW AS IT MAY RELATE TO ELECTION CONTESTATION 02C01-1505-MI-000500
to nancy.boyer, Denise, AMHenry, Carrie, Beth, Amy
hi folks./ your honor.
I just wanted to update you on what i have found
Re- the matter at hand.
02C01-1505-MI-000500
I would respectfully request the court find in my favor for the following reasons:
1.
Mayor Henry "HENRY" Henry's CAN 12- STATEMENT OF ECONOMIC INTERESTS
is neither TRUE NOR COMPLETE - as it omitted significant economic interests.
2. signing and AFFIRMING an election document CAN-12 as "true and complete" when it is in fact NOT TRUE AND COMPLETE is perjury, under Indiana criminal code title 35 Article 44 chapter 2
section 1
IC 35-44-2-1 Perjury Sec. 1. (a) A person who: (1) makes a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true; or (2) has knowingly made two (2) or more material statements, in a proceeding before a court or grand jury, which are inconsistent to the degree that one (1) of them is necessarily false; commits perjury, a Class D felony
AND:
the falsity of a statement may be established sufficient for conviction, by proof that the defendant made irreconcilably contradictory statements which are material to the point in question. As added by Acts 1976, P.L.148, SEC.4. Amended by Acts 1977, P.L.340, SEC.55; Acts 1981, P.L.281, SEC.4.
in that Henry's CAN-12 statement omits critical information-
a- his insurance license status- valid to Nov 2015- which is an Asset.
b. his spouse's various business interests- including the Green Frog bar which she/they owned until August 2014- well within the reporting period. Or was it sold? Property tax records indicate otherwise.
c- a real estate property- 1929 Jessie ave- investment? rental? retirement?- which has a homestead exemptions- with Tom and Cindy Henrys names attached to it.
d. Henry's schomburg address- which also has a homestead exemption attached to it .
One could make a logical inference that Henry has 2 residences and so his voters registration may be incorrect.
3- Henry's CAN-42- statement of candidacy is also BOTCHED- as there are " irreconcilably contradictory statements which are material to the point in question."- with respect to WHAT IS HENRY'S TRUE COMPLETE LEGAL NAME?
one credible local media source claims his middle name as "Charles". Several City Hall employees in the mayors office have also confirmed the Mayors middle name is "Charles" as have 2 city councilmen- Tom Didier, and Tom Smith.
I would call that as preponderance of evidence; so therefore Henry's can-42 is also PERJURED.
under IC 35-44--2-1
Henry filed that form ( or did one of his "errand boys"; despite the Mayor having on staff and speed dial "Layers of Lawyers" who are supposed to take care of these things .
under the name of THOMAS CHRISTOPHER HENRY.
the name as it appeared on the Ballot is Thomas C Henry.
so- did thomas christopher Henry win the primary election? or thomas charles henry? these are two entirely different individuals- one is a fictional character; and the other is married to cindy henry; his spouse; owner of the omitted economic interest- the green frog bar.
so we have clear preponderance of evidence that Henrys election paperwork filed at the ACEb is defective; and fraudulEnt( THAT WORD FRAUDULENT IS IMPORTANT TO THIS MATTER;)
AND PRIMA FACIE EVIDENCE OF 2 COUNTS OF PERJURY.
at the very least- "reasonable suspicion" or "probable cause"
which is all that is needed to file a "probable cause affadavit with the prosecutors office for perjury- a class d felony.
As we have seen- campaign finance laws, and election code laws - have TEETH- various GOP candidates have run afoul; as has win Moses; charged with felony violations in the Boris Jeremenko for sheriff election years ago- resulting in MOSES FORCED PLEA DEAL; AND RESIGNATION; AND RE-CAUCUSED BACK.
But we also have the Matt kelty case in wqhich Kelty was charged with a class d felony; and so is out of politics until expungement.
the "powers that be"- have tried and hoped for years I would be charged with some Felony- for them it doesnt matter- so as to banish me from politics forever.
THE CASE OF WYATT VS WHEELER- clearly states a primary disqualification/ ineligibility ruling is NOT MOOT; and as this is not a GENERAL ELECTION- BUT A PARTISAN PRIMARY- the only voters who voted are party members.
I was "accused" by Judge Levine of tryig to overturn an election that I lost. I replied- no your honor- the other candidates mis filed their paperwork wrong; so by law; they are disqualified; Im only making those facts knownand following the laws in those matters; as the state has ni interest in the qualifications of its elected officials- "the state" being "the voters".
Clearly; Henry BOTCHED HIS PAPERWORK. any big box retailer; fast food employer, high tech manufacturer; CONVENIENCE STORE, or any other employer- including the CITY OF FORT WAYNE would immediately reject a job application that was filled out incompletelye; omitted important relevant information; or was SIGNED UNDER PERJURY.
THEREFORE I ASK THE COURT- TO RULE hENRY ( AND COOK; FOR THAT MATTER)- as disqualified due to fraud; inelgibile due to perjury; a class D felony; and to immetiately schedule a specail election; as a
3-12-8-5
(5) A deliberate act or series of actions occurred making it impossible to determine the candidate who received the highest number of votes cast in the election. As added by P.L.5-1986, SEC.8.Amended by P.L.10-1988, SEC.153; P.L.10-1989, SEC.12; P.L.4-1991, SEC.117; P.L.176-1999, SEC.100; P.L.221-2005, SEC.118.
as Henry is disqualified; and as the highest vote total; then either throws the whole vote tally into question; and again- did thomas charles henry or thomas christopher henry win?
we dont know because thomas c henry could mean either or neither? thomas cobblepott henry?
AND
IC 3-12-8-2 Grounds for contest Sec. 2. An election may be contested under section 1 of this chapter if a petitioner alleges that one (1) of the following circumstances existed: (1) The contestee was ineligible. (2) A mistake occurred in the printing or distribution of ballots used in the election that makes it impossible to determine which candidate received the highest number of votes.
THEREFORE 3-12-8-2 IS applicable.
With respect to the Microvote machines in the precincts in question- the ACEB asst director has provided an extensive pretty well concise accurate report of the precincts in question that registered ZERO VOTES- as the poll workers affadavits on election night machine tapes indicate.
ruling out 6 precincts-
HOWEVER THE FACT STILL REMAINS-
Henry's can -12 and can 42 are defective filed; must be rejected on perjury grounds and therefore- the vote s for HENRY are NULL AND VOID.
MICROVOTE MACHINES
CASE LAW- 2010
x
MICROVOTE SYSTEMS 2010-
MICROVOTE GENERAL v. Indiana Election Com'n, 924 NE 2d 184 - Ind: Court of Appeals 2010
ICROVOTE GENERAL v. INDIANA ELECTION COM'NNO. 49A02-0910-CV-975.
924 N.E.2d 184 (2010)
MICROVOTE GENERAL CORPORATION, Appellant-Petitioner, v. INDIANA ELECTION COMMISSION, Appellee-Respondent.
Court of Appeals of Indiana.
March 29, 2010.
John R. Price, Price-Owen Law, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, David L. Steiner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
RILEY, Judge.
STATEMENT OF THE CASE
Appellant-Petitioner, MicroVote General Corporation (MicroVote), appeals the trial court's Order denying MicroVote's Petition for Judicial Review and Petition for Stay of Enforcement of the final agency order issued by the Appellee-Respondent, the Indiana Election Commission (IEC). The IEC's final order prohibits MicroVote from marketing, leasing or selling voting systems in Indiana for eighteen months, with additional reporting requirements for three and one-half years thereafter.
We affirm.
[924 N.E.2d 188]
ISSUES
MicroVote raises three issues on appeal, which we restate as follows:
(1) Whether the trial court erred in affirming the IEC's final order on res judicata grounds in light of a previous determination by the Indiana Secretary of State during an administrative hearing;(2) Whether the trial court erred in affirming the IEC's final order on collateral estoppel grounds; and(3) Whether the trial court erred in determining that the IEC's final order, which imposed penalties and conditions, did not exceed its statutory authority.
FACTS AND PROCEDURAL HISTORY
MicroVote is a corporation organized and doing business under the laws of the State of Indiana, with its office located in Indianapolis. The corporation supplies election equipment and electronic voting systems to forty-seven counties in Indiana. In 2005, the Indiana Legislature amended several statutes applicable to electronic voting systems and the vendors of these systems. Under the revised Indiana Code section 3-11-7.5-28(a), any previously issued approval or certification of electronic voting system issued by the IEC "expires October 1 of the year following the year in which presidential electors are elected under [I.C. § ] 3-10-2-3." As a result of this statutory revision, MicroVote's electronic voting system became decertified on October 1, 2005.
Prior to October 1, 2005, MicroVote contacted the IEC seeking clarification of Indiana Code section 3-11-7.5-28(g) and specifically as to whether it would be permissible for MicroVote to continue servicing pre-existing customers after the decertification date. This referenced statutory provision establishes that "A vendor subject to subsection (f) may continue to provide support during the period specified in subsection (f) to a county that has acquired a voting system from the vendor after the vendor certifies that the voting system to be supported by the vendor only includes hardware, firmware, and software approved for use in Indiana." Ind.Code § 3-11-7.5-28(g). Subsection (f) indicates that
If the commission finds that a vendor has marketed, sold, leased, installed, implemented, or permitted the use of a voting system in Indiana that:(1) has not been certified by the commission for use in Indiana; or(2) includes hardware, firmware, or software in a version that has not been approved for use in Indiana;the commission may revoke the approval granted under this section and prohibit the vendor from marketing, leasing, or selling any voting system in Indiana for a specific period not to exceed (5) years.
A Co-General Counsel for the Indiana Election Division (IED) responded via email, dated September 2, 2005, stating in part:
[924 N.E.2d 189]
I recognize that `installed, implement and permit the use' language in these statutes could cause you concern as this language could be interpreted to mean that even if the sale was consummated prior to the expiration of certification that the subsequent delivery and installation made pursuant to that legal contract made after the system was no longer certified, could be argued as violating the statute. I do not believe that was the intent of the legislature. [I.C. § ] 3-11-7.5-28(g) indicates inexplicitly that a vendor `may continue to provide support' to a voting system `to a county that has acquired a voting system from the vendor' after the vendor certified that the voting system to be supportedby the vendor only includes hardware, firmware, and software approved for use in Indiana.I believe the reference to acquire is the same as `sale' as used elsewhere in this section. In my view, as long as the sale was consummated while the system was certified then all further activities undertaken to implement the contract for sale and all activities to support the voting system legally sold would not result in a violation of the above statutes.
(Appellant's App. pp. 33-34). A disclaimer was inserted at the bottom of this email with an explicit warning not to rely on the legal interpretation and to seek independent legal advice.
After receiving this email and during the decertification period which commenced on October 1, 2005, MicroVote continued to conduct business in several Indiana counties, including executing contracts in nine Indiana counties for voting equipment with firmware and software versions which had been decertified, marketing its equipment throughout Indiana, public testing in forty-seven counties, and installing uncertified firmware in voting equipment in forty-seven counties.
During the same period, MicroVote also initiated the testing of its electronic voting systems, a mandatory prerequisite to apply for recertification with the IEC. Nevertheless, MicroVote was unable to immediately apply for certification as national testing authorities imposed a nation-wide moratorium on all such testing. This ban was not lifted until March 30, 2006. On April 28, 2006, the IEC approved MicroVote's application for renewal of certification of its voting software. On May 2, 2006, forty-seven Indiana counties used the then current, certified version of MicroVote's electronic voting system in the primary election held on that day.
