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Judges don't agree candidate is 'qualified'

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Indiana Court of Appeals judges disagreed as to whether an elected at-large school board candidate was "qualified" under the Indiana Constitution to take office because his election caused three members from the same school district to be on the board. The majority ruled in favor of the candidate and another winner, ruling the portion of the statute that says the person who wins the greatest number of votes wins the position controls despite conflicting subsections.

In Clarke C. Campbell v. Board of School Commissioners of the City of Indianapolis and Marion County Election Board, et al., No. 49A02-0808-CV-681, Clarke Campbell appealed the trial court ruling that the individuals who received the highest number of votes for the two at-large seats on the Indianapolis Public Schools Board should be seated despite statute saying no more than two board members may reside in the same district. Winners Michael Cohen and Elizabeth Gore caused three members to be seated from the same district.

The Board of School Commissioners for IPS originally filed the complaint following the May 2008 election seeking an interpretation of Indiana Code Section 20-25-3-4. Gore ran for Campbell's incumbent at-large seat and won. Cohen won the "open" at-large election; the vacancy was the result of a resignation from another at-large board member before his term was up.

At the time Cohen and Gore ran, they were qualified to run and both lived in IPS District 3; there was already a board member representing District 3. This violated subsection (b) of the statute that states no more than two members who serve on the board may reside in the same board district. The statute also says in subsection (e) that a candidate who runs for an at-large position wins if he or she gets the greatest number of votes of all the candidates for the position.

The election brings up a situation in which it is impossible to adhere to both subsections, wrote Judge Paul Mathias, and the statute provides no guidance for the "rare, but potentially recurring circumstance in this case where a mid-term resignation by an at-large Board member caused both at-large seats to be vacant in the same election cycle."

The majority agreed with the trial court that subsection C(e) should control, which is later in position in the statute. It noted its conclusion is consistent with the governing rule in Indiana to uphold the will of the electorate.

The majority and Judge L. Mark Bailey disagreed as to whether Gore and Cohen were elected and qualified under Article 15, Section 3 of the Indiana Constitution. The majority concluded that "qualified" referred to actions the elected successor must take after the election to qualify for office, such as taking an oath of office. Judge Bailey believed Cohen wasn't qualified to hold an at-large position because when Gore defeated Campbell, Cohen was statutorily disqualified to hold office because he was the third person residing in the district elected to the school board. He also remained disqualified at the time he took office. In accordance with subsection (h) of the statute, Judge Bailey wrote Leroy Robinson, who held the office before Cohen was elected, should retain the position until another person is elected and qualified. The judge noted that because the "open" at-large position caused the current problem, his solution only affects that position.

The majority also urged the General Assembly to consider the circumstances of the appeal and formulate a statutory remedy should similar circumstances appear in a future election.

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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