State ex rel. Socialist Labor Party v. State Election Bd., 1068S172

• Citation: 251 Ind. 260,241 N.E.2d 69
• Decision Date: 17 October 1968
• Docket Number: No. 1068S172,1068S172
• Parties: STATE of Indiana ex rel. SOCIALIST LABOR PARTY, by its officers, Casimer Kanczuzewski, Chairman, John M. Morris, Secretary, and Herman A. Kronewitter, Treasurer, Plaintiff Below, v. STATE ELECTION BOARD of Indiana, Roger D. Branigin, Thurman, DeMoss, and Edwin K. Steers, Sr., Members, Defendants Below, and Petitioners to Transfer to Indiana Supreme Court.
• Court: Supreme Court of Indiana

Page 69

241 N.E.2d 69

251 Ind. 260

STATE of Indiana ex rel. SOCIALIST LABOR PARTY, by its officers, Casimer Kanczuzewski, Chairman, John M Morris, Secretary, and Herman A Kronewitter, Treasurer, Plaintiff Below, v. STATE ELECTION BOARD of Indiana, Roger D. Branigin, Thurman DeMoss, and Edwin K. Steers, Sr., Members Defendants Below, and Petitioners to Transfer to Indiana Supreme Court.

No. 1068S172.

Supreme Court of Indiana.

Oct. 17, 1968.

Wilson & Kern, Indianapolis, for plaintiff.

John J. Dillon, Atty. Gen., Charles S. White Indianapolis, Chief Counsel--Staff, Virginia Dill McCarty, Asst. Atty. Gen., for defendants.

LEWIS, Chief Justice.

This case commenced in the Marion Circuit Court and was removed to the Appellate Court of Indiana by the Attorney General of Indiana pursuant to Indiana Acts 1965 (2nd Spec.Sess.), ch. 7, Burns' Indiana Statutes, Anno., § 3--2121 et seq.

The Appellate Court issued final judgment against the defendants on the issues formed by separate Motions for Summary Judgment filed by both the plaintiff and the defendants, which Order reads, omitting the formal parts thereof, as follows:

'This matter is before us upon petition filed by the Attorney General of the State of Indiana, the Honorable John J. Dillon, pursuant to Acts of the General Assembly. Acts 1965 (2nd Spec.Sess.), ch. 7, section 2 through 7 inclusive, and sections 9 through 13 inclusive; being Burns Ann.Stats., sections 3--2121 through 3--2131 inclusive.

'No petition for remand nor motion or petition questioning the jurisdiction of this court, had been filed in this court.

'The petition for removal was filed by the Attorney General before any order, writ, mandate or judgment was issued by the Circuit Court of Marion County in the State of Indiana, in Cause No. X68 519.

'The matter before us is presented by the complaint, designated as a 'petition for mandate', filed by the Socialist Labor Party in the Circuit Court of Marion County, Indiana; an answer, filed by the Attorney General, acting as counsel for the State Election Board; and, the reply filed by the Socialist Labor Party; the latter two, being filed in this court. The complaint designated as a 'petition for mandate', by the Socialist Labor Party, and designated by the defendants, by counsel, as a 'complaint', contains twenty-one (21) paragraphs.

'To the designated 'complaint', defendants filed formal answer in admission and denial pursuant to Rule 1--3 of the Rules of the Supreme Court of Indiana.

'Subsequent to the filing of answer, defendants filed, in this court, their motion for summary judgment with supporting affidavit, which read as follows:

(H.I.)

'To this answer and motion, plaintiffs filed reply and motion for summary judgment with supporting affidavit, all of which read as follows:

(H.I.)

'The court, having considered all of the pleadings and motions, and, having heard the argument of counsel, finds:

1. That it has jurisdiction of this cause.

2. That there is no genuine issue of fact presented.

3. That the Socialist Labor Party should be placed on the ballot at the General Election to be held in the State of Indiana on the 5th day of November, 1968.

4. That the State Election Board should be ordered to recall all ballots heretofore printed and distributed; to reprint said ballots with the name of the Socialist Labor Party thereon; to re-distribute said ballots to the various Clerks of the Circuit Courts of the State of Indiana and to certify the Socialist Labor Party and its candidates to the Offices of all of the Clerks of the Circuit Courts and to the Election Boards throughout the State of Indiana.

5. That an emergency exists and a certified copy of this order shall be served upon Roger D. Branigin, Thurman DeMoss and Edwin K. Steers, Sr., as members of the Election Board of the State of Indiana.

'IT IS THEREFORE ORDERED by this court that the State Election Board Roger D. Branigin, Thurman DeMoss, and Edwin K. Steers, Sr., be and they are hereby mandated to recall, reprint and re-distribute the ballots to be used at the General Election to be held in the State of Indiana on the 5th day of November, 1968, and to place thereon the name of the Socialist Labor Party and to certify the Socialist Labor Party and its candidates to the Offices of all of the Clerks of the Circuit Courts and to the Election Boards throughout the State of Indiana.

'The Clerk of the Supreme and Appellate Courts is hereby directed to certify copies of this order.

'SO ORDERED, this 4th day of October, 1968, at Indianapolis, Indiana.'

The defendants petitioned this Court for transfer of the cause from the Appellate Court, alleging:

1. That the order of the Appellate Court contravenes a ruling precedent of this Court as enunciated in State ex rel. Welsh v. Superior Court of Marion County (1962), 243 Ind. 307, 185 N.E.2d 18.

2. That the Appellate Court erroneously decided a new question of law with reference to the requirements of Burns' Indiana Statutes, Anno., § 29--3812.

3. That the Appellate Court failed to state in its order sustaining the relators' Motion for Summary Judgment and overruling defendants' Motion for Summary Judgment, the particular cause for Summary Judgment as set out in relators' Motion for Summary Judgment which contained multiple reasons; that the failure of the Appellate Court to give its reasons for Summary Judgment contravenes Harris v. The Young Women's Christian Association, etc. (1968), Ind., 237 N.E.2d 242.

In oral argument before this Court the Socialist Labor Party, by its counsel, contended that the Petition to Transfer was improper in that the petitioners had failed to file a Motion for Rehearing in the Appellate Court and, therefore, were in violation of Rule 2--23 of the Rules of the Supreme and Appellate Courts.

The petitioners answered that this was an Original Action in which the Appellate Court's final adjudication was rendered on a Motion for Summary Judgment and no petition or application for rehearing would have been proper or would have served any useful purpose before the Appellate Court.

We hold that in the case at bar the Appellate Court did sit as a Trial Court under the provisions of Burns' Indiana Statutes, Anno., § 3--2121 et seq. The Appellate Court did not exercise its appellate jurisdiction and we hold that the requirement of a petition for rehearing prior to a petition to transfer is not proper or necessary in any matter in which the Appellate Court sits as a Trial Court and the issues are decided by Summary Judgment. The Rules of this Court have, heretofore, been amended to provide that a Motion for New Trial is not appropriate where judgment has been entered following a Motion for Summary Judgment. The reasons for the adoption of this Rule seem to emphasize the argument of the petitioners herein: that an application for rehearing with the Appellate Court was not properly a condition precedent to filing the Motion to Transfer with this Court in the case at bar since the Appellate Court entered its order in an Original Action and not in a matter where the court was exercising its appellate jurisdiction.

The Socialist Labor Party in its complaint, which was tried before the Appellate Court, contended that the petitioners herein unlawfully excluded the Socialist Labor Party from the ballot in the general election to be held November 5, 1968. The deadline for filing a proper application by a political party is fixed by statute as September 1. The Socialist Labor Party filed with the Governor of the State of Indiana, the signatures of 12,000 or more persons petitioning to have the names of the nominees of said party placed on the ballot in the general election to be held in the State of Indiana on November 5, 1968. The petitions were filed prior to the statutory deadline. With the petitions an affidavit was filed purporting to comply with the requirements of Burns' Indiana Statutes, Anno., § 29--3812, which reads as follows:

'No political party or organization shall be recognized and given a place on or have the names of its candidates printed on the ballot used at any election which advocates the overthrow, by force or violence, of the local, state or national government, or which advocates, or carries on, a program of sedition or of treason, and which is affiliated or cooperates with or has any relation with any foreign government, or any political party or group of individuals of any foreign government. Any political party or organization which is in existence at the time of the passage of this act, or which shall have had a ticket on the ballot one (1) or more times prior to any election, and which does not advocate any of the doctrines the advocacy of which is prohibited by this act, shall insert a plank in its platform that it does not advocate any of the doctrines prohibited by this act. No existing or newly-organized political party or organization shall be permitted on or to have the names of its candidates printed on the ballot used at any election until it has filed an affidavit, by its officers, under oath, that it does not advocate the overthrow of local, state or national government by force or violence, and that it is not affiliated with and does not cooperate with nor has any relation with any foreign government, or any political party, organization or group of individuals of any foreign government. The affidavit herein provided for shall be filed with the state election board or the county election board having charge of the printing of the ballot on which such ticket is to appear. The election board with which such affidavit is filed shall make, or cause to be made such investigation as it may deem necessary to determine the character and nature of the political doctrines of such existing or proposed new party and the expense of such investigation by the state election board shall be paid out of the general funds of the state treasury not otherwise appropriated, provided the amount of...