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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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