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High court asked to intervene in recount

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The Indiana Supreme Court is being asked to toss out a trial judge's order for a Terre Haute mayoral race recount because the petitioner failed to include the winner's middle initial.

Attorney James Bopp Jr. with Terre Haute law firm Bopp Coleson & Bostrom filed an emergency request Thursday afternoon for the justices to intervene in the recount challenge, contending that Vigo Circuit Judge David Bolk didn't have jurisdiction to order a recount from the Nov. 6 election. Democratic Mayor Kevin Burke asked for a recount shortly after losing by 107 votes to Republican Duke Bennett.

But Bopp argues that Judge Bolk, who serves as both a Circuit and Superior judge, didn't have jurisdiction because of the variance in Bennett's name as it appeared in court papers and on the ballot. On the ballot, his full name with middle initial "A" is listed, while the challenge petition did not list that initial.

Therefore, the court can't rule on the recount, Bopp's brief says.

Earlier this week, Judge Bolk denied motions to dismiss recount and election challenge petitions on the name variance grounds, leading to the Supreme Court filing.

"While such an error might seem trivial, it was significant enough of a distinction to the legislature to amend recount of election requirements to specifically require a candidate's name as written on the ballot in a recount proceeding," the brief states, "and is likewise enough of an omission to divest (Vigo Circuit Court and Judge Bolk) of jurisdiction."

Bopp cites three Indiana Supreme Court cases as authority that specific names must be included and mirror the ballot: State ex Rel Young v. Noble Circuit Court, 332 N.E.2d 102 (Ind. 1975); Marra v. Clapp, 262 N.E.2d 631 (Ind. 1970); and State v. Lake Circuit Court, 121 N.E.2d 647, 649 (Ind. 1954).

This recount petition suffers a similar, fatal flaw as those cases, Bopp contends in his brief, and Burke's doesn't meet state law requirements.

Denying this petition would create extreme hardship for the newly-elected mayor by being "unnecessarily delayed" in taking the position and subject him to further scrutiny beyond the judicial jurisdictional scope, Bopp's brief states.

A trial has been scheduled for Dec. 17 on the recount challenges, according to the local court calendar, but that may not happen depending on action from the state's high court.
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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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