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Friday, November 21, 2008

Ind. Law - More on: Other mayors' races still at issue?

On Nov. 19th the ILB posted this entry, asking whether the mayoral races in Anderson and Muncie were still at issue.

I've received a response from Bill Groth, Fillenwarth Dennerline Groth & Towe, LLP, who writes:

Marcia: Regarding your post querying the status of the mayoral disputes in Anderson and Muncie, I am/was involved in both and here's the latest:

Anderson: I represented mayor-elect (now Mayor) Kris Ockomon in this case. The Special Judge from Henry County dismissed former Mayor Kevin Smith's lawsuit early last Spring, holding that Smith and the other Plaintiffs had failed to state a cognizable claim for quo warranto since Smith, as the candidate receiving by far the fewest votes, was unable to prove a superior title to the office of Anderson mayor and was basing his claim solely on the alleged weakness of Mayor Ockomon's title to that office (Smith and his fellow Republicans claimed Ockomon had failed to meet the 1-year residency requirement). I argued that the Court should never overturn the results of an election absent a showing that the voters knowingly had voted for an unqualified candidate citing, inter alia, Oviatt v. Behme. Interestingly, that case played a prominent role in the COA's decision last week in the Terre Haute mayoral case. I can have my office forward you a copy of the Special Judge's decision if you're interested. Former mayor Smith, et al. filed a motion to correct error, which the SJ denied, but then never perfected an appeal.

Muncie: I represent the Democratic nominee for mayor, Jim Mansfield, in this case. It is far from over and still very much alive. As of last week the appeal is now fully briefed. You may want to take a look at the COA's electronic docket to see how the appeal has progressed. We are claiming on appeal that the special judge from Jay County erred when he dismissed Democratic Party candidate Mansfield's contest petition on timeliness grounds. Mansfied you may recall was first certified as the winner, only to fall behind by 13 votes after a recount tossed out 19 absentee ballots because they weren't initialed by the Republican clerk. The contest petition seeks a special election in the precinct from which those ballots came on the ground that the ballots were distributed by mistake, and alleges that this error in the distribution of ballots makes it impossible to determine which candidate received the highest number of votes from legitimate voters. Even though Mansfield had no basis for filing it within the 14 day period after the election (because he was the certified winner) the SJ dismissed it as untimely even though Mansfield had filed his contest within a few days after the recount commission certified his opponent, McShurley, as the new winner. We are also claiming that the trial court again erred when it later dismissed Mansfield's amended quo warranto complaint, which also seeks a special election based on the distribution of these flawed absentee ballots. We expect a decision in the case in the next 2-4 months. Again, I would offer to email you the briefs if you'd like to read and/or post them.

I replied yes, the ILB would be pleased to post both the Special Judge's decision in the Anderson case, and the briefs in the Muncie case. When they arrive, I will insert the links in the above.

Posted by Marcia Oddi on November 21, 2008 10:36 AM
Posted to Indiana Law