Ray v. State Election Bd.
| Citation | 425 N.E.2d 240 |
| Decision Date | 08 September 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 |
On rehearing the State Election Board contends we erred in deciding this case which can be found at 422 N.E.2d 714, Ind.App. The Board raises several issues involved in our disposition of this case but none of these issues were raised in the Board's Appellee's Brief and they are therefore waived. Nonetheless, we will address one of the issues raised by the Board to clarify a decision made in our original opinion.
In deciding this case we addressed the merits of F. Perry Ray's contention that he was unconstitutionally denied access to the ballot despite the Board's failure to make findings of fact as required by Ind.Code 4-22-1-10. In its Appellee's Brief the Board did not address Ray's constitutional challenges to IC 3-1-9-6. On rehearing the Board asks us to do the same contending for the first time that we should have remanded this case to it with instructions to make findings of fact. Since this argument was obviously not raised by the Board in its Appellee's Brief, it cannot be raised for the first time on rehearing. City of Indianapolis v. Wynn, (1959) 239 Ind. 567, 159 N.E.2d 572; State Board of Tax Commissioners v. Stanley, (1952) 231 Ind. 338, 108 N.E.2d 624.
Although the Board has waived this issue we feel compelled to address its argument that we had no option but to remand this case to it. In State ex rel. State Board of Tax Commissioners v. Marion County Superior Court Room No. 5, (1979) Ind., 392 N.E.2d 1161, 1166, our Supreme Court said:
Based on the facts in that case and the four cases cited as authority by the Court, we believe this language applies to administrative decisions which are "unlawful" due to the agency's failure to follow the applicable substantive law. We do not necessarily believe it is applicable to a decision with the "technical defect" of failing to abide by the applicable procedural law, i. e. failing to make findings of fact. See Department of Financial Institutions v. State Bank of Lizton, (1965) 253 Ind. 172, 252 N.E.2d 248.
In State ex rel. State Board of Tax Commissioners v. Marion County Superior Court Room No. 5, supra, the reviewing trial court set aside the Board's decision, an act the court had the authority to do, but it then went on to determine a new tax rate and mandated that the Board use it. The latter action by the trial court was beyond its authority and on appeal the Supreme Court said the sole relief the trial court could have granted was to vacate the Board's decision and remand the matter for further proceedings.
Similar factual situations were present in the four other cases cited. In those cases the trial courts found the commissions had not properly applied the substantive law involved and ordered the respective commissions to approve the transfer of a certificate of public convenience, to...
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Jones v. Womacks
...on point which is referred to by the parties is Ray v. State Election Board, 422 N.E.2d 714 (Ind.Ct.App.1981), clarified upon reh'g, 425 N.E.2d 240, in which the appellant Ray had attempted to have his name placed on the ballots of both the Republican and Democratic parties as a candidate f......
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Meier v. American Maize-Products Co., Inc.
...a grant of summary judgment in favor of AMP is an issue separate and apart from the question of law. See Ray v. State Election Board (1981) 4th Dist. Ind.App., 425 N.E.2d 240, 242; see also Indiana Environmental Management Board v. Indiana-Kentucky Electric Corp. (1979) 181 Ind.App. 570, 39......