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COA: Candidate remains on ballot

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The Republican winner of the primary election for Indiana House of Representatives District 74 will remain on the ballot for the general election, the Indiana Court of Appeals ruled today.

Charles R. Wyatt challenged Republican candidate Susan Ellspermann’s declaration of candidacy for the primary election. In her declaration, she certified she’s affiliated with the Republican Party because she voted as a Republican in the most recent prior primary election, but she had actually voted as a Democrat in the 2008 election.  

After discovering her vote, she filed an amended declaration. Ellspermann’s motion to reconsider failed as well as Wyatt’s challenge to her candidacy because votes on those motions split 2 to 2. By Indiana Election Commission rules, she remained on the ballot and beat her challenger, Angela Sowers.

Before the election, Wyatt filed suit in Marion Superior Court, but the court didn’t rule before the election. It denied his request for a preliminary injunction and denied both parties’ motions for sanctions. Wyatt appealed the denial of his request for injunctive and declaratory relief; Ellspermann appealed the denial of her request for attorney’s fees.  

Wyatt failed to meet his burden of showing by a preponderance of the evidence that the public interest would not be disserved by granting the preliminary injunction, wrote Senior Judge Patrick Sullivan. He noted if the Court of Appeals ruled in favor of Wyatt, it would nullify the primary election results.

Caselaw has held that the purpose of election law and the courts are to secure voters an opportunity to freely and fairly cast ballots and prevent disenfranchisement. The statute at issue in this case doesn’t provide that compliance with its provisions is essential to a valid election. Ellspermann testified that she had forgotten she had voted as a Democrat in the 2008 primary and she historically had voted Republican. Wyatt didn’t submit any evidence to counter her explanation.

“Under these circumstances, the irregularity in Ellspermann’s declaration and any misconstruction of Indiana Code section 3-8-2-7 by the IEC or the Marion Superior Court cannot justify reversal of the trial court’s denial of a preliminary injunction because it would contradict the will of the electorate and disenfranchise voters,” wrote Judge Sullivan in Charles R. Wyatt, et al. v. Thomas E. Wheeler, et al., No. 49A02-1006-PL-636.

The judges also found even if the per se rule applied to this case, which it does not, it wouldn’t provide grounds for reversal because Wyatt would still have to show that the issuance of the injunction wouldn’t be contrary to the public interest. They also affirmed the denial of declaratory relief because if they rule that the IEC and Marion Superior Court had misapplied the relevant statutes, then Ellspermann’s victory would be invalid. That outcome would violate the purpose of election laws, wrote Judge Sullivan.

The Court of Appeals affirmed denial of Ellspermann’s request for attorney’s fees and denied her request for appellate attorney’s fees.

 

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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