Taylor v. State Election Bd. of State of Ind.

• Decision Date: 22 June 1993
• Docket Number: No. 74A01-9207-CV-248,74A01-9207-CV-248
• Court: Indiana Appellate Court
• Parties: William Palmer TAYLOR, Appellant-Plaintiff, v. STATE ELECTION BOARD OF the STATE OF INDIANA; and the Vanderburgh County Council, Appellees-Defendants. 1

Page 380

616 N.E.2d 380

William Palmer TAYLOR, Appellant-Plaintiff, v. STATE ELECTION BOARD OF the STATE OF INDIANA; and the

Vanderburgh County Council, Appellees-Defendants.

No. 74A01-9207-CV-248. ¹

Court of Appeals of Indiana,

First District.

June 22, 1993.

David Bunner, Steven L. Bohleber, Evansville, for appellant-plaintiff.

Pamela Carter, Atty. Gen., John T. Roy, Deputy Atty. Gen., Indianapolis, Joseph H. Harrison, Jr., Evansville, for appellees-defendants.

ROBERTSON, Judge.

William Palmer Taylor appeals from the grant of summary judgment in favor of the State Election Board of the State of Indiana, its chairman and members, and the Vanderburgh County Council. Taylor had sought a declaratory judgment that he could remain on the Vanderburgh County Council even though Ind.Code 3-8-1-5(3)(B), passed after Taylor's election, apparently disqualified him from holding the office. The trial court concluded that the statute, in fact, disqualified him. On appeal, Taylor alleges the statute is unconstitutional as applied to him in the following particulars:

I. Whether its application to the Appellant constitutes an ex post facto law as prohibited by Article I, Section 9(3) and 10(1) of the United States Constitution and Article I section 24 of the Indiana Constitution.

II. Whether its application to Appellant herein constitutes an improper disenfranchisement as defined by Article II, Section 8 of the Indiana Constitution, which permits disenfranchisement only upon conviction of "infamous crimes."

III. Whether the application of the statute to the Appellant constitutes double jeopardy in violation of Article I, Section 14 of the Indiana Constitution and Amendment 5 of the United States Constitution.

IV. Whether the application of this statute to the Appellant herein, or to any person, is an impermissible deprivation of liberty and property without due process of law in violation of the United States Constitution, Amendments 5 and 14.

V. Whether the application of the statute to the Appellant herein constitutes an impermissible disenfranchisement of all voters who cast a ballot for him at the time of his last election, in violation of Article II, Section 1 of the Indiana Constitution.

We affirm because the trial court correctly decided these issues and determined that the Election Board was entitled to judgment as a matter of law.

The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law. Bassett v Glock (1977), 174 Ind.App. 439, 368 N.E.2d 18. If no genuine issue of material fact exists, summary judgment is appropriate if the movant is entitled to judgment as a matter of law. Woodward Insurance, Inc. v. White (1982), Ind., 437 N.E.2d 59. Summary judgment is appropriate when there is no dispute or conflict regarding facts which are dispositive of the dispute. Madison County Bank & Trust Co. v. Kreegar (1987), Ind., 514 N.E.2d 279.

The facts are undisputed. In 1982, Taylor was convicted of two (2) counts of class D felony criminal recklessness while he was a member of the Vanderburgh County Council. He was removed from office by operation of law upon the imposition of criminal penalties for the offenses. Taylor was later re-elected to the Council and has been re-elected twice more in general elections. In 1991, the Indiana General Assembly amended Ind.Code 3-8-1-5 to include subsection (3), so that a person is disqualified from holding or being a candidate for an elected office if the person has been convicted of a felony (as defined in IC 35-50-2-1). I.C. 3-8-1-5(3)(B). In reliance on this amendment, the Election Board advised the Chairman of the Vanderburgh County Democrat Committee that Taylor's seat on the Council was vacant by operation of law. Taylor then filed his action for declaratory judgment, and the trial court concluded that he was disqualified.

I.

Only two of the three authorities Taylor cites as the bases of his ex post facto argument are applicable here. The Constitution of Indiana provides that "No ex post facto law ... shall ever be passed." Ind. Const. art. I, Sec. 24. The Constitution of the United States provides that "No state shall ... pass any ... ex post facto law ..." U.S. Const. art. I, Sec. 10, cl. 1. Taylor also cites to the federal provision which states that "No ... ex post facto law shall be passed." U.S. Const. art. I, Sec. 9, cl. 3. That provision, however, applies only to Congress and not the states. Smith v. State (1949), 227 Ind. 672, 87 N.E.2d 881.

An ex post facto law is a legislative act relating to criminal matters, retroactive in its operation, 1) which alters the situation of an accused to his disadvantage or deprives him of some lawful protection to which he is entitled, as a law which imposes a punishment for an act which was not punishable when it was committed; 2) which makes a crime greater than when it was committed or imposes additional punishment therefor; or 3) which changes the rules of evidence by which less or different testimony is sufficient to convict. See In re Petitions to Transfer Appeals (1931), 202 Ind. 365, 174 N.E. 812. Taylor's class D felony offenses were punishable when committed, so his disqualification did not impose "a punishment for an act which was not punishable when it was committed." Further, the statute did not make the crime greater than a class D felony, that is, "greater than when it was committed," and did not change the rules of evidence. The only portion of the definition of ex post facto that might support Taylor's argument is that the statute "imposes additional punishment" for the offenses; that is, if the disqualification is, in fact, an additional punishment for his past convictions of class D felony criminal recklessness.

The statute, however, does not impose additional punishment upon Taylor. Indiana Code Article 3-8-1 generally lists qualifications for candidates; but, in contrast, I.C. 3-8-1-5 provides the circumstances under which an officer or candidate is disqualified. The statute is not an ex post facto law merely because it draws upon facts which occurred prior to the passage of the statute. United State v. Bell (E.D.Texas, 1973), 371 F.Supp. 220, 223.

The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation ...

De Veau v. Braisted (1959), 363 U.S. 144, 160, 80 S.Ct. 1146, 1155, 4 L.Ed.2d 1109. The legislature's aim here was not to punish past activities but to regulate elected officials and candidates based upon their general characteristics, one of which is trustworthiness. The public considers trustworthiness to be a relevant and basic qualification of persons who serve the citizens as elected officials. See Bell, 371 F.Supp. at 223.

The decision reached in Crampton v. O'Mara (1923), 193 Ind. 551, 139 N.E. 360, appeal dismissed, (1925), 267 U.S. 575, 45 S.Ct. 230, 69 L.Ed. 795 is instructive here. In Crampton, the appellee was elected in November of 1921, for a term of four years to begin in January of 1922. Before this, the legislature had passed an act to void the election of persons who, inter alia, had been convicted of certain crimes. Chapter 83, Acts 1921, p. 179. The Act had become effective after its passage on March 5, 1921. Id. The appellant contested the appellee's election because the appellee had been convicted, in 1915, of one of the crimes listed in the Act. On appeal, the appellee contended, inter alia, that the Act was ex post facto. The appellee's contention was that the Act imposes additional punishment for his crimes; that is, his 1922 disqualification due to the 1921 Act would be an additional punishment for his 1915 convictions.

The appellee in Crampton cited Cummings v. State of Missouri (1866), 36 Mo. 263, reversed 71 U.S. (4 Wall.) 277, 18 L.Ed. 356, as does Taylor in the present case. Taylor claims that Cummings shows that the United States Supreme Court "was of the opinion that to lose the right to hold office or practice a profession on the basis of prior acts was, in fact additional punishment for the prior act." The Cummings court, however, decided that the deprivation of the right or privilege to engage in the occupation there was, in effect, punishment. Cummings, 4 Wall. at 320, 18 L.Ed. 356. In the present case, the aim of the disqualification is not punishment but is regulation of a present situation based upon trustworthiness. De Veau, 363 U.S. at 160, 80 S.Ct. at 1155; Bell, 371 F.Supp. at 223. See Hawker v. New York (1898), 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002. We follow the lead of the Crampton court and do not conclude that the statute imposes additional punishment for Taylor's past convictions. The trial court correctly concluded that the Election Board was entitled to judgment as a matter of law on this issue.

II.

Taylor claims that his disqualification constitutes an improper disenfranchisement as defined by Article II, Section 8 of the Constitution of Indiana, which permits disenfranchisement only upon conviction of an "infamous crime," as follows:

The General Assembly shall have the power to deprive of the right of suffrage, and to render ineligible, any person convicted of an infamous crime.

Taylor claims that "infamous crimes" are limited to those listed in Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210, which does not include criminal recklessness, the crime of which Taylor was convicted.

The Ashton court, however, decided an evidentiary question and did not purport to define "infamous crime" as listed in our state constitution. For the purpose of impeaching the credibility of a witness, only those convictions for crimes involving dishonesty or false statement shall be admissible. Id. at 62-63,...