Would-be Republican candidate in 2022 primary failed to preserve suit for review, COA rules

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A would-be Republican candidate in the May 2022 primary failed to preserve his lawsuit for appellate review, the Court of Appeals of Indiana has ruled in affirming a lower court’s decision. The Court of Appeals also ruled other claims were moot.

Thomas Bookwalter submitted a declaration of candidacy to the Indiana Election Division on Jan. 6, 2022. He was seeking placement on the Republican Party’s primary ballot for the U.S. House of Representatives.

About a month later, two people filed a challenge to Bookwalter’s candidacy with the Indiana Election Commission, alleging Bookwalter’s filing was incomplete and that he didn’t vote in two Republican primaries. Pursuant to Indiana Code § 3-8-2-7, a candidate can show their affiliation with a political party by voting for that party in the two most recent primary elections in which they voted, or they can obtain certification of affiliation from the party’s county chairperson.

The commission conducted a hearing on Feb. 18, 2022, when Bookwalter testified that he had not voted in the 2020 Republican primary because the candidates were unopposed. He also said the county chair “refused to certify that I’m a party member despite my having provided her with an affidavit detailing my lifelong support for the party and of living its best core values.”

Bookwalter argued the statute governing party affiliation is unconstitutional and asked the commission to not enforce it, but the commission voted unanimously to uphold the challenges to his candidacy.

Bookwalter petitioned for judicial review with the Marion Superior Court 24 days after the commission’s decision. He filed a complaint for declaratory and injunctive relief and petitioned for an emergency stay.

His petition asked the trial court to reverse the commission’s decision and restore his name to the ballot, arguing the statute violated his right to freedom of association under the Fifth and 14th amendments. Bookwalter also argued the statute is vague and overbroad, and that it is an invalid ex post facto law as applied to him.

The trial court denied the petition for a stay on April 1, 2022, observing that the day Bookwalter filed his petition for judicial review was the deadline for counties to receive delivery of printed absentee ballots.

On April 27, 2022, Bookwalter filed a motion to certify the trial court’s denial of his petition for interlocutory appeal. The primary election was held May 3.

The commission moved to dismiss on May 11, arguing Bookwalter didn’t file the agency record as required by the Administrative Orders and Procedures Act and that because the primary election was over, his complaint for declaratory and injunctive relief was moot.

Following a hearing, the trial court declined to certify the denial of Bookwalter’s petition for a stay for interlocutory appeal.

The trial court granted the commission’s motion to dismiss in August, determining Bookwalter had not timely filed the official certified agency record, thereby mandating dismissal of his AOPA complaint. The trial court also concluded Bookwalter’s complaint for declaratory and injunctive relief was moot.

Bookwalter appealed, arguing the trial court erred in dismissing his AOPA suit on the grounds that he did not file the agency record on time, his claims for declaratory and injunctive relief on the grounds that they are moot, and his constitutional challenges to the statute on the grounds that they lack merit.

The Court of Appeals disagreed.

In its opinion, the court noted Bookwalter had 30 days after he filed his petition on March 14, 2022, to file the agency record or request an extension.

“It is undisputed that Bookwalter did not file the agency record by the April 13, 2022, deadline or at any time thereafter,” the opinion states.

Bookwalter pointed to Indiana Supreme Court precedent — including Teaching Our Posterity Success, Inc. v. Ind. Dept. of Educ. and State Bd. of Educ. (TOPS), 20 N.E.3d 149 (Ind. 2014) — to argue dismissing a petition for judicial review for failure to file the agency record is not appropriate when the facts are undisputed.

But the Court of Appeals said it didn’t need to determine whether TOPS allows for what Bookwalter referred to as a “Meyer exception” to the filing rule because the facts of that case were “easily distinguished.”

“The Meyer exception — even if we assume that TOPS recognizes one — only seems to apply when a factual issue is dispositive of the case and the respondent on judicial review concedes its error,” the opinion states, referencing Indiana Family and Social Services Administration v. Meyer, 927 N.E.2d 367 (Ind. 2010). “Neither of those circumstances are present here.”

Bookwalter also argued the public-interest exception to the mootness doctrine renders his appeal justiciable, an acknowledgement the court said both sides recognize. The commission argued, however, that the additional element of the issue evading review must also be present.

But the Court of Appeals ruled it didn’t need to address the question of whether the issue evades review because it concluded Bookwalter failed to establish either that the issues in the case are of great public interest or likely to recur.

Bookwalter maintained the issue is likely to recur — including to himself — because most Hoosiers don’t vote in primaries. But the court ruled Bookwalter argued the issue “could” recur.

“Moreover, we cannot ignore the fact that Bookwalter chose to wait over three weeks to petition for judicial review following the Commission’s ruling,” the opinion states.

The court continued, “Bookwalter could have petitioned for judicial review the day after the Commission’s ruling, or soon thereafter, but chose to wait twenty-four days, until the very day absentee ballots were required by law to be delivered to counties.”

Judge Cale Bradford wrote the opinion. Judges Melissa May and Paul Mathias concurred.

The case is Thomas Charles Bookwalter v. Indiana Election Commission, Gregory L. Irby, and Cody Eckert, 22A-PL-1981.

The Bookwalter case marks the second time in as many weeks that the Court of Appeals has addressed the party affiliation requirements in I.C. 3-8-2-7.

Last week, a different panel ruled against Amy Rainey, who sought judicial review after she was kept off the May 2022 Republican primary for an Indiana state House seat, largely for the same reasons as Bookwalter. As in Bookwalter, the panel in in Rainey’s case determined the issues were moot. 

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