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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. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  2. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  3. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  4. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  5. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

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