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https://www.theindianalawyer.com/articles/21158-coa-upholds-dismissal-of-election-challenges
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COA upholds dismissal of election challenges

May 28, 2009

KEYWORDS ELECTION / CIVIL CASE / MUNCIE / DELAWARE COUNTY / INDIANA COURT OF APPEALS / COURT OPINIONS / COURTS / NEGLECT

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.

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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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