Miles v. Eltzroth, 1--176A6

• Decision Date: 15 July 1976
• Docket Number: No. 1--176A6,1--176A6
• Citation: 351 N.E.2d 77,170 Ind.App. 37
• Parties: H. Richard MILES, Petitioner-Appellant, v. Byrl L. ELTZORTH, Respondent-Appellee.
• Court: Indiana Appellate Court

Page 77

351 N.E.2d 77

170 Ind.App. 37

H. Richard MILES, Petitioner-Appellant, v. Byrl L. ELTZORTH, Respondent-Appellee.

No. 1--176A6.

Court of Appeals of Indiana, First District.

July 15, 1976.

Rehearing Denied Sept. 1, 1976.

Frank E. Spencer, Indianapolis, for petitioner-appellant.

William M. Evans, Bose, McKinney & Evans, Indianapolis, for respondent-appellee.

LOWDERMILK, Judge.

STATEMENT OF THE CASE:

Appellant H. Richard Miles (Miles) appeals from the trial court's judgment finding that Byrl L. Eltzroth (Eltzroth) was the duly elected Morgan County Superior Court Judge as a result of the general election held on November 5, 1974.

We affirm.

FACTS:

The facts necessary for our resolution of this appeal are as follows: On November 19, 1974, Miles filed a petition challenging the validity of the election for Superior Court Judge of Morgan County and seeking a recount of votes cast in the element. ¹ Particularly, Miles challenges the method in which absentee ballots were handled by precinct officials and subsequently by the Recount Commission. On December 6, 1974, the trial court appointed a Recount Commission. On December 16, 1974, the Commission reported to the trial court the results of their recount which concluded that Eltzroth had received eighteen (18) more votes in the general election than Miles.

Following the return of the Commission's report, Miles, on December 17, 1974, filed his objections thereto. On March 11, 1975, Eltzroth filed his response to Miles' objections with a supporting memoranda.

On March 11, 1975, Miles and Eltzroth filed the following stipulations with the trial court:

'Come now the parties hereto, by counsel, and stipulate and agree as follows:

1) There are no facts in dispute in the above entitled cause, the only question to be resolved by the Court are questions of law and are raised by the certification of recount heretofore filed in this Court.

These legal issues are as follows:

a. Should Absentee Ballots have been counted if such ballots did not contain the initials of the precinct election officials?

b. Should Absentee Ballots have been counted if after counting in the precinct they were then re-inserted in the individual Absentee Ballot envelope?

c. Should Absentee Ballots have been counted in excess of the number shown on the official precinct tally books at the time of the initial count by the precinct election officials?

2) The parties further agree that these are the only issues remaining to be determined by the Court, that they are legal and not factual issues, that the report of the Recount Commission is true and accurate as it pertains to the Absentee Ballots and may be considered to be factual in nature, that no evidence is therefore needed unless ordered by the Court; and the parties agree that the Court may determine the matter on the above Stipulation of Facts and legal questions raised thereby.' (Our emphasis.)

On April 17, 1975, the trial court entered its judgment and found that Eltzroth was the duly elected judge of the Morgan County Superior Court.

ISSUES:

1. Did the trial court err in permitting 156 absentee ballots to be counted when the Recount Commission did not compare the signatures on the ballots with the requests for absentee ballot forms, affidavits of absentee ballot envelopes, or voter poll lists?

2. Did the trial court err in permitting these absentee ballots to be counted which did not bear the initials of the poll clerks?

3. Did the trial court err in permitting these same ballots to be counted even though they were returned in opened individual absentee ballot envelopes?

At the outset of this opinion, we are relegated to the unpleasant position of having to find that one of the alleged errors that Miles would have us now review was waived.

Issue number one, supra, which appeared in Miles' motion to correct errors was not one of the three issues stipulated by the parties to the trial court as the only issues which the trial court needed to resolve. Therefore, since the trial court was denied the opportunity to resolve this issue because of the stipulation agreement entered into freely by the parties, we will not now resolve this issue for the first time on appeal. Continental Casualty Co. v. Lloyd (1905), 165 Ind. 52, 55, 73 N.E. 824.

ISSUES TWO AND THREE:

We have elected to consolidate Miles' contentions of error two and three because our reasoning and holding in this opinion are equally applicable to each. Ind. Rules of Procedure, Appellate Rule 8.3(A)(7).

Miles argues that it was error for the Recount Commission to count 156 absentee ballots in the Precincts of Brown 2, Jackson 1, Jefferson 1, and Washington 3, said ballots not having been initialed by the poll clerk. Also, he argues the ballots should not have been counted because they were returned in opened absentee ballot envelopes thus removing the cloak of secrecy from the election process.

This court, after having examined the 156 absentee ballots in question, must agree with Miles that the poll clerks' initials do not appear on the absentee ballots, and the carrier envelopes are not present for all ballots.

IC 1971, 3--1--22--12 (Burns Code Ed.) provides inter-alia:

'. . . the election inspector shall open the envelope containing the absent voter's ballot in such manner as not to deface or destroy the affidavit thereon and take out the ballot or ballots inclosed therein without unfolding or permitting the same to be unfolded or examined. The inspector shall then deliver such ballot or ballots to the clerks, who shall at once proceed to write their initials, above the signature of the clerk of the circuit court or the secretary of state as the case may be, in ink on the lower lefthand corner of the back of each such ballots in their ordinary handwriting and without any distinguished mark of any kind and in the same manner as other ballots are required to be indorsed. The inspector shall thereupon deposit the same in the proper ballot-box or ballot-boxes and enter the absent voter's name in the poll list, the same as if he had been present and voted in person.' (Our emphasis.)

IC 1971, 3--1--25--1 (Burns Code Ed.) provides in relevant part:

'. . . And in the canvass of the votes any member of the election board may protest as to the counting of any ballot, or any part thereof, and any ballot which is not indorsed with the initial of the clerks, as provided for in this act (3--1--1--1--3--1--33--2), and any ballot which shall bear any distinguishing mark or mutilation shall be void, and shall not be counted, and any ballot, or part of a ballot, from which it is impossible to determine the elector's choice of candidates, shall not be counted as to the candidate, or candidates, affected thereby; and all ballots, voted and not voted, together with all protested, disputed or uncounted ballots and certificates of the election board and tally sheets, shall be preserved . . .' (Our emphasis.)

The strict letter of the above cited statutes were not followed by the precinct election officials; however, this does not necessitate a reversal of this cause.

The issue of the poll clerks' absence of initials on the validity of absentee ballots was before our Supreme Court in the case of Lorch v. Lohmeyer (1969), 252 Ind. 182, 247 N.E.2d 61. The court therein at pages 192--193, 247 N.E.2d at pages 67--68 held:

'As to Exhibits Nos. 7, 8, 21, 31, 34, 43, 44, 63, 64 and 67, an examination of these ballots discloses that none of them contains the poll clerks' initials thereon. This Court has...