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COA rules against voting-systems company

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The Indiana Court of Appeals affirmed a lower court order denying an electronic voting systems company's petition for stay on an order prohibiting it from marketing, selling, or leasing voting systems in Indiana for 18 months.

MicroVote General Corp. provided election equipment and electronic voting systems to 47 counties in Indiana. Under revised Indiana Code Section 3-11-7.5-28(a), the company's systems would become decertified by Oct. 1, 2005, and the systems had to be recertified. MicroVote continued to execute contracts, market its equipment, and install uncertified equipment before becoming re-certified.

The Office of Indiana Secretary of State and the Indiana Election Division instituted separate administrative proceedings claiming MicroVote violated statute by servicing customers after its equipment was decertified. The OSS proceedings recommended a financial punishment. The Indiana Election Commission, which ruled on the IED claim, issued a final order after the OSS initiated proceedings. The IEC prohibited MicroVote from selling, leasing, or marketing its systems in Indiana for 18 months with additional reporting requirements for 3 ½ years thereafter.

In MicroVote General Corp. v. Indiana Election Commission, No. 49A02-0910-CV-975, MicroVote appealed the denial of its verified petition for judicial review. The company claimed IEC should have dismissed the proceedings before it based on res judicata and collateral estoppel grounds.

The trial court held the matter wasn't or couldn't have been determined in a prior action, but the Court of Appeals found MicroVote did satisfy this requirement of res judicata. There was identical evidence offered to support both claims and the only factual difference was the penalty imposed, wrote Judge Patricia Riley.

MicroVote didn't meet the last requirement for res judicata - that the controversy adjudicated in the former action must have been between the parties to the present suit or their privies. It is true that the IED is a division of the OSS, but the two entities have separate authorities.

"While the OSS and the IED both have duties related to Indiana's elections, their respective duties are significantly different," wrote the judge. "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."

The appellate court also found no error in the application of the offensive collateral estoppel in the proceedings before the IEC. MicroVote had a full and fair opportunity to litigate the issue of its violations and allowing the company to now re-litigate the issue would be unfair under the circumstances.

In addition, the IEC's final order didn't impose penalties and conditions that exceed its statutory authority. The discretionary nature of Indiana's election law statute, combined with the Indiana Administrative Orders and Procedures Act, empowers the IEC to sanction a vendor for violating I.C. § 3-11-7.5-28 without de-certifying the vendor's voting equipment.

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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