Mansfield v. McShurley

• Decision Date: 28 May 2009
• Docket Number: No. 18A02-0804-CV-375.,18A02-0804-CV-375.
• Citation: 911 N.E.2d 581
• Court: Indiana Appellate Court
• Parties: Jim MANSFIELD and State ex rel. Mansfield, Appellants-Petitioners/Relators, v. Sharon McSHURLEY and Delaware County, Indiana Election Board, Appellees-Respondents.

911 N.E.2d 581

Jim MANSFIELD and State ex rel. Mansfield, Appellants-Petitioners/Relators, v. Sharon McSHURLEY and Delaware County, Indiana Election Board, Appellees-Respondents.

No. 18A02-0804-CV-375.

Court of Appeals of Indiana.

May 28, 2009.

William R. Groth, Geoffrey S. Lohman, Fillenwarth Dennerline Groth & Towe, LLP, Indianapolis, IN, Joseph P. Hunter, Michael P. Quirk, Quirk, Rivers & Hunter, Muncie, IN, Attorneys for Appellants.

David M. Brooks, Brooks Koch & Sorg, Indianapolis, IN, Frank E. Gilkison, Muncie, IN, Attorneys for Appellees.

OPINION

MAY, Judge.

Jim Mansfield was initially declared the winner of the election for mayor of Muncie but after a recount Sharon McShurley was declared the winner. Mansfield challenged that result, but his case was dismissed because he did not bring his action within fourteen days of the election as required by Indiana statute. Mansfield next filed a complaint in quo warranto to challenge the exclusion of some ballots by election officials.¹ That action was dismissed after the trial court found Mansfield's allegation of a "mistake" in the counting of improperly-initialed ballots did not amount to an allegation of an unlawful act that could be redressed by a quo warranto action. Mansfield also alleged fraud, but the trial court found his allegations were insufficiently specific.

We affirm the trial court.²

FACTS AND PROCEDURAL HISTORY

Mansfield, the Democrat candidate for mayor of Muncie, appeared to defeat McShurley, the Republican, in the November 6, 2007 election. Mansfield was issued a certificate of election on November 23, but on November 26, the Delaware County Republican Party petitioned for a recount. Accordingly, all the ballots, machines, and other materials were impounded. During the recount it was determined that nineteen absentee ballots had been distributed to voters without the initials of a Republican member of the election board, so those ballots were disqualified. Eighteen of those ballots were for Mansfield and one was for McShurley. When the recount was finished December 20, McShurley was declared the winner by thirteen votes.

A week later Mansfield brought a petition for election contest, alleging the above-described "mistake was made in the distribution of ballots," (App. at 19), which mistake made it impossible to determine the winner. McShurley moved to dismiss the contest and the trial court did so on the ground it had no jurisdiction to hear the contest because it was not timely filed.

On February 13, Mansfield filed an amended complaint in quo warranto. There he alleged the irregularity with the nineteen ballots mentioned above was that they "were either distributed by mistake or were knowingly or intentionally and fraudulently distributed without proper initials," (id. at 47), and not counted, causing McShurley to win even though Mansfield had more votes. McShurley moved to dismiss this complaint on the ground Mansfield did not have a basis for a quo warranto claim. The trial court dismissed before Mansfield responded.

DISCUSSION AND DECISION

A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim, not the facts supporting it, so our review of a grant or denial of a motion based on Trial Rule 12(B)(6) is de novo. Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604 (Ind.2007). 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 on which relief can be granted unless it is clear on the face of the complaint that the complaining party is not entitled to relief. Id. at 605.

1. Dismissal of Election Contest

A candidate who contests an election "must file a verified petition with the circuit court clerk of the county that contains the greatest percentage of the population of the election district no later than noon fourteen (14) days after election day." Ind.Code § 3-12-8-5 (emphasis supplied). Neither candidate requested a recount within fourteen days. Twenty days after the November 6th election, the Delaware County Republican party petitioned for a recount. The recount was concluded December 20, and McShurley was certified the winner. Mansfield brought his Petition for Election Contest seven days later.

McShurley's motion to dismiss asserted four grounds for dismissal with prejudice: (1) Mansfield's petition was not brought within the fourteen-day statutory period; (2) exclusive jurisdiction over the election result was in Delaware Circuit Court No. 3, such that Circuit Court No. 5, where Mansfield brought his position, lacked jurisdiction to hear it; (3) Mansfield did not state a claim because he did not allege a "mistake in the distribution of ballots as required and contemplated by IC 3-12-8-6,"³ (App. at 27); and (4) Mansfield did not allege any situation in which it was impossible to determine who received the highest number of votes as required by Ind.Code § 3-12-8-6.

The trial court decided it had jurisdiction but found: "The requirements imposed by [the election contest statute], including the time for filing, are jurisdictional." (App. at 16.) Therefore it dismissed Mansfield's claim without addressing whether Mansfield alleged a "mistake in the distribution of ballots" or a situation in which it was impossible to determine who received the highest number of votes. The court noted Mansfield was not precluded by the fourteen-day limit from pursuing a remedy, as "it has been held that the concurrent remedy by information and quo warranto ... does provide an adequate and complete review of the proceedings of a recount commission." (Id.)

Mansfield notes he was the presumptive winner of the election when the statutory time expired, so he could not have challenged the election before the statutory time expired.⁴ Nor could he have known by that time that the nineteen absentee ballots had been distributed to voters without the initials of a Republican member of the election board. He argues the statutory deadline is not to be applied to election contestors like him who are "diligent and faultless," (Appellant's Br. at 12), in seeking relief.

The procedure for an election contest and for a recount of votes is purely statutory, and one seeking relief under the statute must bring himself strictly within its terms. Slinkard v. Hunter, 209 Ind. 475, 478, 199 N.E. 560, 562 (1936). The public has an interest in the speedy determination of controversies affecting elections, and provisions of the statute limiting the time within which steps may be taken are universally regarded as mandatory. Unless they are strictly complied with, the court is without jurisdiction of the subject matter. Id. And see Briles v. Wurtsbaugh, 530 N.E.2d 1187, 1188 (Ind.Ct.App. 1988) (The common law made no provision for contesting elections; the statute permitting such contests provides a special statutory proceeding. Thus, the requirements imposed by the statute are jurisdictional.).

Mansfield asserts our Supreme Court has recognized exceptions. In State ex rel. Arredondo v. Lake Circuit Court, 271 Ind. 176, 391 N.E.2d 597 (1979), for example, the trial court set a hearing on an election contest petition for a date within, but near the end of, the twenty-day period allowed for by statute. A timely hearing could not be held because the contestor's motion for change of judge was granted and the new judge did not qualify in time to conduct a hearing within the statutory period. The contestee filed an original action to prevent further proceedings. The Supreme Court denied the writ, stating a mandatory application of the statutory deadline would be

grossly inequitable and place a great burden upon both an election contestor and the trial court. A hearing might initially be set near the end of the statutory time limit. If, then, the trial court either deliberately re-schedules the hearing beyond the limit or is forced to do so because of extraordinary circumstances beyond its control, a diligent and faultless contestor would forever be denied his statutory remedy. Our laws must provide a degree of flexibility to account for such situations. There can be no justification for closing the judicial doors to a bona fide litigant when the circumstances causing the delay are completely beyond his control. We therefore hold that when there are extraordinary or unusual circumstances which preclude a contest hearing from being conducted within 20 days after the report of the recount commission, the trial court will not automatically be divested of jurisdiction so long as the hearing is had as soon as practicable after the time limit. The contestor, of course, must be diligent in his efforts and must not utilize tactics to delay the hearing beyond the 20-day period.

Id. at 178-79, 391 N.E.2d at 599. The Court noted the broad purpose of the recount statute and the contest statute is a "full and fair litigation of election disputes in an expeditious manner. This legislative intent is not defeated by construing the statute to permit unusual circumstances to extend the time period within which a hearing must be had." Id. at 179, 391 N.E.2d at 599.

In Arredondo, the petitioner moved for and was granted a change of judge ten days before the expiration of the time period. The motion "did not come so late as to prevent a timely hearing" and the petitioner "was diligent in requesting that the hearing be scheduled" within the statutory period. Id., 391 N.E.2d at 600. Therefore the failure of the trial court to conduct the hearing within 20 days of the report of the recount commission was not a jurisdictional defect and the petition for a permanent writ of mandate and prohibition was denied. Id.

In Pabey v. Pastrick, 816 N.E.2d 1138, 1143 (Ind.2004), reh'g denied, our Supreme Court relied on Arredondo in rejecting Pastrick's claim the trial...