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COA upholds dismissal of election challenges

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Today Indiana's appellate courts are dealing with two mayoral election disputes, with the Court of Appeals ruling on one in Muncie and the Supreme Court hearing arguments in another from Terre Haute.

The Court of Appeals affirmed the trial court's dismissal of Democratic candidate Jim Mansfield's challenges to Republican candidate Sharon McShurley being named Muncie mayor after a recount Dec. 20. Mansfield was declared the winner of the election until a recount filed by the Delaware County Republican Party led to the discovery of 19 invalid absentee ballots - with 18 votes being for Mansfield. The absentee ballots weren't recounted because they had been distributed to voters without the initials of a Republican member of the election board.

Mansfield brought his petition for election contest a week after the recount. The trial court dismissed it because it didn't have jurisdiction to hear it because it wasn't filed within the statutory 14-day time period after Election Day. The trial court also dismissed his Feb. 13, 2008, amended complaint in quo warranto.

In Jim Mansfield and state ex rel. Mansfield v. Sharon McShurley and Delaware County, Indiana Election Board, No. 18A02-0804-CV-375, the appellate court upheld the trial court's dismissal of the election contest and quo warranto complaint. Mansfield argued he couldn't have filed his election contest within the 14-day statutory limit because he didn't learn he wasn't the official winner until after the time limit had passed.

The Court of Appeals didn't find Arredondo v. Lake Circuit Court, 271 Ind. 176, 391 N.E. 2d 597 (Ind. 1979), and Pabey v. Pastrick, 816 N.E.2d 1138, 1143 (Ind. 2004), applicable to the instant case because they dealt with the question of whether a trial court's failure to hold a hearing within the time prescribed by statute divested it of jurisdiction it had already acquired. The cases didn't establish exceptions to the 14-day jurisdictional requirement in the election contest statute, wrote Judge Melissa May.

The Court of Appeals acknowledged the "unusual result" the application of the statutory time limit causes, but the availability of quo warranto gives a challenger a day in court even if a recount changes the result.

Mansfield conceded the disputed absentee ballots couldn't be counted in the recount, but alleged the ballots were still legal because they were legitimate ballots made invalid by the election officials' mistake. They shouldn't be considered fraudulent like those addressed in Pabey and a special election should occur because several voters were disenfranchised by the mistake.

But the Court of Appeals ruled the trial court didn't err in dismissing Mansfield's complaint on the ground the recount commission did nothing unlawful when it declined to count certain ballots. It also ruled McShurley wasn't entitled to attorneys' fees because Mansfield's complaint and appeal weren't frivolous.

Mansfield's attorney William Groth was disappointed by the opinion because he believed there are substantial legal issues of first impression that would be interesting to take up on transfer, he said in an e-mail to Indiana Lawyer Daily. The issue is whether the Supreme Court's ruling in Pabey, which held courts retain jurisdiction to order a special election when a candidate doesn't meet the statutory time limits through no fault of his own, should be extended to the facts of the instant case. Another issue is whether the ballots cast by the absentee voters were "distributed by mistake" within the meaning of Indiana Code Section 3-12-8-2 such that a special election should have been ordered, he said. The final issue is whether the application of the Indiana Election Code, by providing a right and remedy to the initially certified loser but not to the winner, violates the Open Courts and Privileges and Immunities clauses of the Indiana Constitution.

"The unfortunate ultimate result is that 19 blameless voters remain disenfranchised, and that disenfranchisement not only affected them, it changed the outcome of the election," he said.

Groth wasn't sure if his client will consider appealing to the Supreme Court.

The high court heard arguments this morning in Duke Bennett v. Kevin D. Burke, No. 84S01-0904-CV-148, in which Kevin Burke is challenging whether Duke Bennett could have been elected mayor of Terre Haute because he worked for a nonprofit that received federal funds right before he ran for mayor.

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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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