Ray v. State Election Bd.
| Decision Date | 30 June 1981 |
| Docket Number | No. 2-880A278,2-880A278 |
| Parties | F. Perry RAY, Appellant (Petitioner Below), v. STATE ELECTION BOARD, Appellee (Respondent Below). |
| Court | Indiana Appellate Court |
Charles Thomas Gleason, Gleason, Hay & Gleason, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.
In 1980 F. Perry Ray attempted to have his name placed on the ballots of both the Republican and Democratic parties as a candidate for Congress. The State Election Board (Board) denied Ray a place on either ballot and he appealed its decision to the Marion Superior Court where it was affirmed.
We reverse.
On appeal, we are presented the following questions:
1. Is this case moot;
2. Was the trial court correct in finding Ind.Code 3-1-9-3 defines membership in a political party; and
3. Is Ind.Code 3-1-9-6 unconstitutionally vague and overbroad? 1
Ray mailed two separate Declarations of Candidacy to the Secretary of State's office in which he requested to be placed on the May 1980 primary ballots of the Democratic and Republican parties for United States Representative from the 11th Congressional District. In one declaration, he stated he was a member of the Democratic party and in the other, a member of the Republican party. Not knowing how to handle this dual filing, the Secretary of State's office presented the issue to the Board which set it for a hearing. At the hearing Ray affirmed his desire to appear on both ballots if he could do so legally. When asked if he had a party preference, he said, Boardmember Thomas Milligan thought Ray's failure to disclose a party preference made him ineligible for either ballot and made the motion to disqualify both declarations, since he believed cross-filings were not allowed under IC 3-1-9-6.
(emphasis added)
The motion was seconded and unanimously adopted.
Ray appealed the Board's decision to the Marion Superior Court arguing the Board arbitrarily applied IC 3-1-9-6 to his case since it failed to offer any definition or interpretation of the phrase "belonging to any other party," that the Board's application of this section to him violated his constitutional right to freedom of association, and that this section was unconstitutionally vague. After reviewing the transcript and exhibits from the Board's hearing the court affirmed the Board's decision. In its ruling, the court made the following findings:
"...
The Court finds membership in a political party is defined in IC 3-1-9-3, as a person who, at the last preceding general election voted for a majority of the regularly nominated candidates of the party holding such election or if he did not vote at the last preceding election, intends to vote at the next general election for a majority of the regularly nominated candidates of the party holding such election. The statute provides for affidavits in the event the right to vote for a specific party is challenged.
The Court further finds that under IC 3-1-9-6, the name of each (sic) shall be printed on the official ballot under a designation of the office for which he is a candidate. That the name of no candidate belonging to any other party shall be printed or written thereon.
The Court further finds that the action of the State Election Board was not arbitrary, capricious, or an abuse of discription (sic) and was in accordance to law.
The Court further finds that the action of the Election Board was not contrary to constitutional right, power, privilege or immunity.
The Court further finds that the action of the Election Board was not in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.
The Court further finds that the State Election Board observed procedure required by law and its decision was supported by substantial evidence."
The Court entered judgment against Ray and stated "petitioner is not entitled to have his name placed on the official ballot of either the Republican or Democratic party in the primary election." From this judgment Ray now appeals.
Time has obviously made this case moot. The 1980 primary has been concluded and no decision we make today can turn the clock back. Nonetheless, due to the timing involved in our state election laws, we find several issues raised by Ray "capable of repetition, yet evading review," Rosario v. Rockefeller, (1973) 410 U.S. 752, 757 footnote 5, 93 S.Ct. 1245, 1249, 36 L.Ed.2d 1, and of general public interest 2 and we will therefore address these issues.
Decisions of the Board are reviewable in accordance with the provisions of the Administrative Adjudication Act (Act), Ind.Code 4-22-1-1 et seq. Section 10 of the Act requires the Board to make informal findings of fact 3 and section 14 provides for judicial review by a trial court. 4 The scope of judicial review is limited by Ind.Code 4-22-1-18:
"4-22-1-18 Judicial review Procedure. On such judicial review such court shall not try or determine said cause de novo, but the facts shall be considered and determined exclusively upon the record filed with said court pursuant to this act (4-22-1-1 4-22-1-30).
On such judicial review, if the agency has complied with the procedural requirements of this act, and its finding, decision or determination is supported by substantial, reliable and probative evidence, such agency's finding, decision or determination shall not be set aside or disturbed.
If such court finds such finding, decision or determination of such agency is:
(1) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; or
(2) Contrary to constitutional right, power, privilege or immunity; or
(3) In excess of statutory jurisdiction, authority or limitations, or short of statutory right; or
(4) Without observance of procedure required by law; or
(5) Unsupported by substantial evidence, the court may order the decision or determination of the agency set aside. The court may remand the case to the agency for further proceedings and may compel agency action unlawfully withheld or unreasonably delayed.
Said court in affirming or setting aside the decision or determination of the agency shall enter its written findings of facts, which may be informal but which shall encompass the relevant facts shown by the record, and enter of record its written decision and order or judgment."
The record before us does not contain an informal findings of fact by the Board, it does not appear the findings were ever made, and neither the parties nor the trial court judge have commented on this omission. However, we do have the entire transcript of the Board's hearing and decision of this case, and despite the Board's failure to comply with IC 4-22-1-10 we will nonetheless decide this case now rather than remand it for an entering of findings of fact due to Ray's failure to raise this omission, the lack of conflict in the evidence presented at the hearing, the moot stance of this case, and due to the fact that the primary issues raised here concern questions of law, not of fact.
In its Findings of Fact and Judgment (set out above) affirming the Board's decision, the trial court defined membership in a political party by paraphrasing IC 3-1-9-3. 5 Then it set out the provision of IC 3-1-9-6 "that the name of no candidate belonging to any other party shall be printed or written thereon." Lastly the court found the Board did not violate any of the proscriptions contained in IC 4-22-1-18. The trial court erred in applying the law in this manner.
Neither the court nor the Board had any evidence before it concerning which party Ray had affiliated with 6 in the 1976 general election, or if he had not voted in the 1976 general election, which party he intended to affiliate with in the 1980 general election. Under IC 3-1-9-3, the court needed this information in order to decide if Ray belonged to the Democratic or Republican party. Without this information, the court could not and did not make any specific findings as to Ray's party membership. Despite this lack of findings, the court apparently found Ray had violated the cross-filing prohibition of IC 3-1-9-6. Without having found Ray belonged to a specific party, the court could not have found Ray belonged to "any other party" in addition to the party on whose ballot he was attempting to have his name placed as a candidate. At the minimum, it appears Ray should have been allowed a position on at least one of the primary ballots since he filed a declaration of candidacy for both parties. At most he could have only "belonged" to one party under the IC 3-1-9-3 definition because Ray could not have affiliated with, i. e. voted for a majority of the nominees of, more than one party.
Additionally, we do not believe IC 3-1-9-3 was intended to be used as a definition of party membership. As enacted in Acts 1945, ch. 208, § 85, IC 3-1-9-3 was entitled "Qualifications of Voters," and it sets out eligibility requirements for primary...
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