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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. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. 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.

  5. 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!

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