Ankeny v. Governor of State of Indiana

• Citation: 916 N.E.2d 678
• Decision Date: 12 November 2009
• Docket Number: No. 49A02-0904-CV-353.,49A02-0904-CV-353.
• Parties: Steve ANKENY and Bill Kruse, Appellants-Plaintiffs, v. GOVERNOR OF the STATE OF INDIANA, Appellee-Respondent.
• Court: Court of Appeals of Indiana

916 N.E.2d 678

Steve ANKENY and Bill Kruse, Appellants-Plaintiffs, v. GOVERNOR OF the STATE OF INDIANA, Appellee-Respondent.

No. 49A02-0904-CV-353.

Court of Appeals of Indiana.

November 12, 2009.

Steve Ankeny, New Castle, IN, Bill Kruse, Roselawn, IN, Appellants pro se.

Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Steve Ankeny and Bill Kruse (collectively, "Plaintiffs"), pro se, appeal the trial court's grant of a motion to dismiss filed by Mitch Daniels, in his official capacity as the Governor of the State of Indiana ("Governor"). Plaintiffs raise nine issues, which we revise and restate as whether the trial court erred by granting the motion to dismiss under Ind. Trial Rule 12(B)(6).¹ We affirm.²

The relevant facts follow. On December 9, 2008, Plaintiffs filed a "PETITION FOR EXTRAORDINARY WRIT OF PROHIBITION" against the Governor³ to prevent the Governor "from issuing a `Certificate of Ascertainment,' or any other document, to Congress of the United States containing any popular votes for Barack Obama and Joe Biden for the appointment as Chief Electors . . . [or] John McCain and Sarah Palin for the appointment of Electors." Appellants' Appendix at 6. On January 30, 2009, the Governor filed a motion to dismiss alleging in part that "the Plaintiffs have failed to state a claim upon which relief can be granted." Appellee's Appendix at 1. The Governor also filed a memorandum in support of the motion to dismiss. On February 17, 2009, the Plaintiffs filed their opposition to the Governor's motion to dismiss. On March 16, 2009, the trial court granted the Governor's motion to dismiss after a hearing. On April 13, 2009, the Plaintiffs filed their notice of appeal.

The sole issue is whether the trial court erred when it dismissed Plaintiffs' complaint. A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim, not the facts supporting it. General Cas. Ins. Co. v. Bright, 885 N.E.2d 56, 57 (Ind.Ct.App. 2008) (citing Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604 (Ind.2007)). Thus, our review of a trial court's grant or denial of a motion based on Trial Rule 12(B)(6) is de novo. Id. at 58. When reviewing a motion to dismiss, we view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant's favor. Id. A complaint may not be dismissed for failure to state a claim upon which relief can be granted unless it is clear on the face of the complaint that the complaining party is not entitled to relief.⁴ Id. However, a court need not accept as true any "conclusory, non-factual assertions or legal conclusions." Irish v. Woods, 864 N.E.2d 1117, 1120 (Ind.Ct.App. 2007). "Thus, while we do not test the sufficiency of the facts alleged with regards to their adequacy to provide recovery, we do test their sufficiency with regards to whether or not they have stated some factual scenario in which a legally actionable injury has occurred." Trail v. Boys and Girls Clubs of Northwest Indiana, 845 N.E.2d 130, 134 (Ind.2006).

In their complaint, the Plaintiffs appear to suggest that the Governor has a duty to determine a person's eligibility to become President in issuing the "Certificate of Ascertainment" "officially appoint[ing] the electors" who cast the State of Indiana's votes in the Electoral College, the body which decides the election for the President of the United States ("President"). Transcript at 13. Specifically, Plaintiffs appear to argue that the Governor did not comply with this duty because: (A) neither President Barack Obama nor Senator John McCain were eligible "to be appointed `Elector in Chief' in violation of Article II, Section 1, Clause 2's prohibition that no United States Senator currently holding that office shall be appointed Elector for any State," and (B) neither President Barack Obama nor Senator John McCain were eligible to hold the office of President because neither were "born naturally within any Article IV State of the 50 United States of America. . . ." Appellants' Appendix at 11-12, 16-18.

Initially, we note that the Plaintiffs do not cite to any authority recognizing that the Governor has a duty to determine the eligibility of a party's nominee for the presidency. The Plaintiffs do not cite to authority, nor do they develop a cogent legal argument stating that a certificate of ascertainment has any relation to the eligibility of the candidates. However, we note that even if the Governor does have such a duty, for the reasons below we cannot say that President Barack Obama or Senator John McCain was not eligible to become President. We will handle each of Plaintiffs' arguments in turn.

A. Sitting Senator

First, Plaintiffs argue that "[t]he Constitution of the United States enumerates qualification for the Office of Presidential and Vice-Presidential Electors, and no `sitting Senator,' such as Senator Barack Obama and Senator Joseph Biden, or Senator John McCain, was qualified." Appellants' Brief at 8. We hold for the reasons stated below that Plaintiffs failed to state a cognizable legal claim upon which relief can be granted.

In evaluating Plaintiffs' claim, one need not go further than compare their framing of the electoral process in the State of Indiana with Indiana's electoral process as constructed by state and federal statute, and indeed by the U.S. Constitution itself. Article II, Section 1 of the U.S. Constitution sets forth how the President is chosen; the mechanism used is called the Electoral College. See 3 U.S.C. § 4. Article II, Section 1 describes how the Electoral College is filled as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

U.S. CONST. art. II, § 1, cl. 2. Much of the rest of Article II, Section 1 was changed by the Twelfth Amendment which was ratified in June 1804. The Twelfth Amendment directs:

The Electors shall meet in their respective states, and vote by ballot for President . . . and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President . . .

U.S. CONST. amend. XII.

Thus, the U.S. Constitution vests in the various state legislatures the authority to determine how their state chooses their Electors. The Indiana Legislature acted on this authority when it enacted Ind.Code § 3-10-4-4, which allows voter ballots to carry the name of the "nominees for President and Vice President of the United States of a political party," and that such votes for each nominee "is a vote cast or registered for all of the candidates for presidential electors of the party. . . ." By virtue of its nine members of the House of Representatives and its two Senators, Indiana was entitled to eleven electors in the November 4, 2008 election.⁵ Both the Democratic and Republican party nominated eleven individuals who were residents of the State of Indiana to serve as their party's electors in the 2008 presidential election.⁶ See Ind.Code § 3-8-4-2 ("[a] political party shall conduct a state convention to . . . nominate candidates for presidential electors and alternate electors . . . ."); see also Appellants' Appendix at 21-22. Neither President Barack Obama nor Senator John McCain were nominated as electors for their respective parties in the 2008 election. Appellants' Appendix at 21-22.

"Not later than noon on the second Monday following an election, each circuit court clerk shall prepare a certified statement . . . of votes received by each candidate for: (1) federal office. . . ." Ind.Code § 3-12-5-6(a). These certified statements are sent to the election division of the Secretary of State. Ind.Code § 3-12-5-6(b). Once the election results have been tabulated, "not later than noon of the last Tuesday in November," the Secretary of State "shall certify to the governor the candidate receiving the highest number of votes for each office." Ind.Code § 3-12-5-7. The Governor must then execute a certificate of ascertainment which officially appoints the winning presidential electors; a copy of the certificate of ascertainment is then sent to the Archivist of the United States.⁷ 3 U.S.C. § 6.

The presidential electors assemble "in the chamber of the Indiana house of representatives on the first Monday after the second Wednesday in December as provided by 3 U.S.C. 7, or on another day fixed by the Congress of the United States, at 10 a.m. to elect the President and Vice-President of the United States." Ind.Code § 3-10-4-7. The electors then furnish copies of the "certificates so made by them and the lists attached thereto"⁸ to the Vice President, the Indiana Secretary of State, the Archivist of the United States, and "judge of the district in which the electors shall have assembled." 3 U.S.C. § 11. The votes of the electors of each state are then tallied by the Congress of the United States and the new President is announced. 3 U.S.C. § 15.

The Plaintiffs have a different view of the electoral process in the State of Indiana. In their complaint, the Plaintiffs allege that:

By allowing the name of Barack Obama upon the ballot for appointment of Electors, the Governor of the State of Indiana has allowed Barack Obama to be appointed "Elector in Chief" in violation of Article II, Section 1, Clause 2's prohibition that no United States Senator currently holding that office shall...