ILNews

High court asked to intervene in recount

Michael W. Hoskins
January 1, 2007
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The Indiana Supreme Court is being asked to toss out a trial judge's order for a Terre Haute mayoral race recount because the petitioner failed to include the winner's middle initial.

Attorney James Bopp Jr. with Terre Haute law firm Bopp Coleson & Bostrom filed an emergency request Thursday afternoon for the justices to intervene in the recount challenge, contending that Vigo Circuit Judge David Bolk didn't have jurisdiction to order a recount from the Nov. 6 election. Democratic Mayor Kevin Burke asked for a recount shortly after losing by 107 votes to Republican Duke Bennett.

But Bopp argues that Judge Bolk, who serves as both a Circuit and Superior judge, didn't have jurisdiction because of the variance in Bennett's name as it appeared in court papers and on the ballot. On the ballot, his full name with middle initial "A" is listed, while the challenge petition did not list that initial.

Therefore, the court can't rule on the recount, Bopp's brief says.

Earlier this week, Judge Bolk denied motions to dismiss recount and election challenge petitions on the name variance grounds, leading to the Supreme Court filing.

"While such an error might seem trivial, it was significant enough of a distinction to the legislature to amend recount of election requirements to specifically require a candidate's name as written on the ballot in a recount proceeding," the brief states, "and is likewise enough of an omission to divest (Vigo Circuit Court and Judge Bolk) of jurisdiction."

Bopp cites three Indiana Supreme Court cases as authority that specific names must be included and mirror the ballot: State ex Rel Young v. Noble Circuit Court, 332 N.E.2d 102 (Ind. 1975); Marra v. Clapp, 262 N.E.2d 631 (Ind. 1970); and State v. Lake Circuit Court, 121 N.E.2d 647, 649 (Ind. 1954).

This recount petition suffers a similar, fatal flaw as those cases, Bopp contends in his brief, and Burke's doesn't meet state law requirements.

Denying this petition would create extreme hardship for the newly-elected mayor by being "unnecessarily delayed" in taking the position and subject him to further scrutiny beyond the judicial jurisdictional scope, Bopp's brief states.

A trial has been scheduled for Dec. 17 on the recount challenges, according to the local court calendar, but that may not happen depending on action from the state's high court.
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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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