Smith v. King, 45A03-9907-CV-287.

• Decision Date: 24 September 1999
• Docket Number: No. 45A03-9907-CV-287.,45A03-9907-CV-287.
• Parties: Vernon SMITH, Appellant, v. Scott KING and Lake County Board of Elections and Registration, Appellees.
• Court: Indiana Appellate Court

716 N.E.2d 963

Vernon SMITH, Appellant, v. Scott KING and Lake County Board of Elections and Registration, Appellees.

No. 45A03-9907-CV-287.

Court of Appeals of Indiana.

September 24, 1999.

Opinion on Rehearing September 30, 1999.

Transfer Denied October 13, 1999.

Douglas M. Grimes, Gary, Indiana, Attorney for Appellant.

James B. Meyer, Meyer & Godshalk, P.C., Gary, Indiana, Attorney for Appellee Scott King.

J. Justin Murphy, Murphy Law Firm, Hammond, Indiana, Attorney for Appellee Cross-Appellant Lake County Board of Elections and Registration.

OPINION

NAJAM, Judge

STATEMENT OF THE CASE

This case arises from an election contest filed in the Lake Circuit Court. Scott King was nominated for the office of Mayor of Gary in the May 4, 1999 primary election. On May 11, 1999, Vernon Smith, one of five other candidates, filed a petition contesting the election. Smith alleged irregularities in the printing of ballots and in the programming of the electronic voting system. He further alleged fraudulent manipulation of vote totals and asserted that a voting machine or electronic voting system had malfunctioned in each of the precincts in the City of Gary.

During the first hearing held on June 3, 1999, the trial court granted Smith's motion to join the Lake County Board of Elections and Registration (the "Election Board") as an additional party and ordered impoundment of the voting system used for casting and counting votes. The Election Board moved to dismiss Smith's petition on grounds that the trial court had failed to fix a hearing date for the election contest within the time required by statute, which the trial court denied. Thereafter, King moved to dismiss Smith's petition for improper verification. Following a second hearing on July 23, 1999, the trial court dismissed Smith's petition with prejudice for lack of "subject matter jurisdiction" because the court found the petition was not verified as required by statute. The court also ordered release of the impounded machines and related equipment.

Smith appealed, and the Election Board cross-appealed. On Smith's motions, we stayed release of the voting system pending resolution of this appeal and set an expedited briefing schedule. After a hearing on September 17, 1999, this court denied the Election Board's emergency petition to release the impounded voting system for use in the November municipal election but assured the parties that we would issue an opinion on the merits promptly after the case was fully briefed on September 21, 1999.

We affirm.

ISSUES

Smith presents one issue for our review: whether the trial court erred when it held that his petition was improperly verified and dismissed his petition.¹ The Election Board seeks review of a second issue: whether Smith's petition should have been dismissed because the contest hearing was neither scheduled nor held within the time period required by statute.

DISCUSSION AND DECISION

The common law made no provision for election contests, and the statute permitting such contests provides a special statutory proceeding. Bodine v. Hiler, 463 N.E.2d 539, 541 (Ind.Ct.App.1984). One who seeks the benefit of a statutory proceeding must comply with all procedural terms of the statute. State ex rel. Young v. Noble Circuit Court, 263 Ind. 353, 358, 332 N.E.2d 99, 102 (1975). Thus, the requirements imposed by the statute are jurisdictional. Bodine, 463 N.E.2d at 541.

Issue One: Dismissal Due to Improper Verification

Smith contends that the trial court erred when it found that it lacked subject matter jurisdiction due to an improper verification and dismissed his petition with prejudice. Indiana Code Section 3-12-8-5(a) reads: "A candidate who desires to contest an election or a nomination under this chapter must file a verified petition with the circuit court clerk of the county... no later than noon seven (7) days after election day." Here, the relevant portion of Smith's petition reads: "Pursuant to 28 U.S.C. Sec. 1746,² I hereby verify under penalty of perjury that the foregoing is true and correct." King claims that, by prefacing the oath with the phrase "Pursuant to 28 U.S.C. Sec. 1746," Smith has "artfully dodged any exposure to punishment in state court for a false verification in his [p]etition." Brief of Appellee at 6. Thus, King argues that Smith's contest petition does not satisfy the verification requirement of Indiana Code Section 3-12-8-5(a). We disagree.

When applied to pleadings, "verified" means "supported by oath or affirmation in writing." IND.CODE § 1-1-4-5. Pursuant to Indiana Trial Rule 11(B), it is sufficient if the petitioner "simply affirms the truth of the matter to be verified by an affirmation or representation in substantially the following language: `I (we) affirm, under the penalties for perjury, that the foregoing representation(s) is (are) true.'" The essential purpose of a verification is that the statements be made under penalty of perjury. Austin v. Sanders, 492 N.E.2d 8, 9 (Ind.1986).

In this case, Smith's reference to a federal statute does not mean that, if he committed perjury, he would be accountable only in a federal court. The statute itself embraces "any matter" required to be verified "under any rule, regulation, order or requirement made pursuant to law." Smith's petition was filed in an Indiana state court under Indiana substantive law. As the United States Supreme Court has stated, "[T]he power of punishing a witness for testifying falsely in a judicial proceeding belongs peculiarly to the government in whose tribunals that proceeding is had." Thomas v. Loney, 134 U.S. 372, 375, 10 S.Ct. 584, 585, 33 L.Ed. 949, 951 (1890).

The petition was tendered to an Indiana court as a verified pleading and, as we indicated in our stay order, the verification was in substantial compliance with Indiana Trial Rule 11(B). That is enough. The federal citation does not limit the authority of this state to subject Smith to the penalties for perjury under Indiana law. Despite the peculiar reference to a federal statute in the verification, we hold that Smith complied with the requirement of Indiana Code Section 3-12-8-5(a), and the trial court erred when it dismissed Smith's petition on that basis.³

Issue Two: Dismissal Due to Untimely Contest Hearing

We now turn to the Election Board's cross-appeal. We will affirm the trial court's grant of a motion to dismiss if it is sustainable on any theory or basis found in the record. Garage Doors of Indianapolis, Inc. v. Morton, 682 N.E.2d 1296, 1301 (Ind.Ct.App. 1997), trans. denied. The Election Board contends that dismissal of Smith's petition is appropriate because the contest hearing was neither scheduled nor held within the time period required by statute. Specifically, the Election Board contends that the failure to schedule and hold the contest hearing within the statutory time period divested the trial court of jurisdiction to take further action in this case. We agree with the Election Board.⁴

Indiana Code Section 3-12-8-16 provides: "The court shall fix a date within twenty (20) days after the return day fixed in the notice to the contestee for the hearing of a contest." More than 100 years ago, our supreme court held that similar statutory language was mandatory when considering the question of jurisdiction in an election contest. English v. Dickey, 128 Ind. 174, 27 N.E. 495 (1891). More recently, however, the court has noted that a mandatory interpretation of such statutory language under certain circumstances would be grossly inequitable and place a great burden upon both an election contestor and the trial court. State ex rel. Arredondo v. Lake Circuit Court, 271 Ind. 176, 178, 391 N.E.2d 597, 599 (1979).⁵ For example, a contest hearing might initially be set near the end of the statutory time limit and if, then, the trial court either deliberately or because of extraordinary circumstances beyond its control is forced to reschedule the hearing outside the time limit, even a diligent and faultless contestor would forever be denied his statutory remedy. Id. In Arredondo, our supreme court recognized that our laws must provide a degree of flexibility to account for such circumstances. Id. Specifically, the court stated:

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 ... the trial court will not automatically be divested of jurisdiction so long as the hearing is held 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 (emphasis added). Because the underlying purpose of the election contest statute is to achieve a full and fair litigation of election disputes in an expeditious manner, 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.

In this case, there has been no showing of extraordinary or unusual circumstances which precluded a timely hearing. Neither was Smith as diligent as the circumstances dictated nor without fault. Each contestee was notified of Smith's election contest by a summons served by certified mail.⁶ The summonses provided that each respondent had twenty-three days after receipt of the summons to answer to the petition. The last party served with a summons was King, who was served on June 3, 1999. Accordingly, the return day upon which the twenty-day statutory time period began to run was June 28, 1999,⁷ the date by which the last respondent was required to answer the petition. Thus, Indiana Code Section 3-12-8-16 required that the court fix a date for the contest hearing...