Thomas Charles Bookwalter v. Indiana Election Commission, Gregory L. Irby, and Cody Eckert
22A-PL-1981
COURT OF APPEALS OF INDIANA
April 19, 2023
Opinion by Judge Bradford. Judges May and Mathias concur.
ATTORNEY FOR APPELLANT
Michelle C. Harter
Lekse Harter, LLC
Greenwood, Indiana
AMICUS CURIAE PRO SE CURT NISLY
Curt Nisly
Milford, Indiana
ATTORNEYS FOR APPELLEES
Theodore E. Rokita
Attorney General of Indiana
Frances Barrow
Supervising Deputy Attorney General
Indianapolis, Indiana
Bradford, Judge.
Case Summary1
[1] Indiana law requires a person declaring candidacy for a party‘s primary election to confirm that the person is, in fact, affiliated with the party. Pursuant to
Facts and Procedural History
[2] On January 6, 2022, Bookwalter submitted to the Indiana Election Division form CAN-2, declaration of candidacy for primary nomination in 2022, seeking placement on the primary ballot of the Republican Party for the office of United States Representative. The Statute provides, in part, as follows:
(4) A statement of the candidate‘s party affiliation. For purposes of this subdivision, a candidate is considered to be affiliated with a political party only if any of the following applies:
(A) The two (2) most recent primary elections in Indiana in which the candidate voted were primary elections held by the party with which the candidate claims affiliation. If the candidate cast a nonpartisan ballot at an election held at the most recent primary election in which the candidate voted, a certification by the county chairman under clause (B) is required.
(B) The county chairman of:
(i) the political party with which the candidate claims affiliation; and
(ii) the county in which the candidate resides;
certifies that the candidate is a member of the political party.
[3] On February 8, 2022, Gregory Irby filed a CAN-1 form with the Indiana Election Commission (“the Commission“) (which is a challenge to a candidate filing) on the basis that Bookwalter “[d]id not vote in 2 Republican Primaries. No approval from Chair.” Appellant‘s App. Vol. II p. 51. Cody Eckert also filed a CAN-1 form two days later, asserting that Bookwalter had filed an incomplete CAN-2. “More specifically, this individual left question 3 on the form blank. It is also known, this individual has not voted in 2 republican primaries as required.” Appellant‘s App. Vol. II p. 56.
[4] On February 18, 2022, the Commission conducted a hearing and heard testimony on the challenges to Bookwalter‘s candidacy. Bookwalter testified that he had not voted in the 2020 Republican primary because the party candidates had run unopposed. Bookwalter also testified that the county chair had “refused to certify that I‘m a party member despite my having provided her with an affidavit detailing my lifelong support for the party and of living its best core values.” Appellant‘s App. Vol. II p. 69. Bookwalter argued that the Statute is unconstitutional, asking that the Commission refrain from enforcing the Statute and deny the challenges to his candidacy. The Commission voted unanimously to uphold the challenges to Bookwalter‘s candidacy.
[5] On March 14, 2022, or twenty-four days after the Commission‘s decision, Bookwalter petitioned for judicial review, filed a complaint for declaratory and injunctive relief, and petitioned for an emergency stay. Bookwalter‘s petition for judicial review asked the trial court to reverse the Commission‘s decision and restore his name to the ballot. Bookwalter argued that the Statute violated his right to freedom of
[6] The trial court denied the petition for stay on April 1, 2022. The trial court observed that March 14, 2022, the date on which Bookwalter had filed his petition for judicial review, was also the statutory deadline for counties to receive delivery of printed absentee ballots, and March 19, 2022, was the statutory deadline for counties to begin mailing absentee ballots to eligible voters. “Ballots have already been mailed and some voters have returned their ballots and have designated their candidate choices.” Appellant‘s App. Vol. II p. 13. The trial court found that “Bookwalter effectively acceded to the printing and mailing of ballots without his name included as a candidate.” Appellant‘s App. Vol. II p. 13.
[7] On April 27, 2022, Bookwalter filed a motion to certify the April 1, 2022, denial of his petition for a stay for interlocutory appeal. The primary election was conducted on May 3, 2022. The Commission moved to dismiss on May 11, 2022, arguing that Bookwalter had not filed the agency record as required by AOPA and, because the May of 2022 primary election had concluded, his complaint for declaratory and injunctive relief was moot. Following a hearing, the trial court declined to certify the denial of Bookwalter‘s petition for a stay for interlocutory appeal.
[8] On August 8, 2022, the trial court granted the Commission‘s motion to dismiss. The trial court determined that Bookwalter had not timely filed the official certified agency record, thereby mandating dismissal of his AOPA complaint. The trial court also concluded that Bookwalter‘s complaint for declaratory and injunctive relief was moot because the May of 2022 primary election had concluded, meaning that any decision by the trial court on his constitutional claims “would be an impermissible advisory opinion.” Appellant‘s App. Vol. II p. 24.
Discussion and Decision
[9] At the outset, it should be noted that, pursuant to the doctrine of constitutional avoidance, this court avoids addressing the constitutionality of a statute when another avenue is available. Ind. Wholesale Wine & Liquor Co., Inc. v. State ex rel. Ind. Alcoholic Beverage Comm‘n, 695 N.E.2d 99, 108 (Ind. 1998). This “policy of judicial restraint” stems from our tripartite system of government. Id. at 107. As the Indiana Supreme Court has explained:
On occasion, to perform properly its constitutional function, a court must address and resolve the constitutionality of a legislative enactment. But when it does so, it is an exercise of the power to decide the case before it. To do so when not required to decide the case can impinge upon the law-making function which separation of powers reserves for the legislature.
Id. Put differently: “[I]t is a cardinal principle of the judicial function that we will pass upon the constitutionality of a coordinate branch‘s action only when it is absolutely necessary[.]” Snyder v. King, 958 N.E.2d 764, 786 (Ind. 2011) (emphasis omitted).
[10] With this in mind, we turn to Bookwalter‘s argument that the trial court erred in granting the Commission‘s motion to dismiss. We review a trial court‘s ruling on a motion to dismiss for failure to state a claim de novo. Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604 (Ind. 2007). “A motion to dismiss for failure to state a claim upon which relief can be granted
I. Bookwalter‘s AOPA Claim
[11] Bookwalter filed his petition on March 14, 2022, and had thirty days within which to file the agency record or request an extension of time to do so.
[12]
[13] Bookwalter argues that his case falls under what he refers to as the “Meyer exception,” while the Commission argues that TOPS does not allow for any exceptions to the filing rule and that the Court was merely noting that Indiana Family and Social Services Administration v. Meyer, 927 N.E.2d 367 (Ind. 2010), had presented “extremely narrow” circumstances under which a failure to file the agency record had been excusable in that case. We need not determine whether TOPS allows for a Meyer exception, however, as the facts of that case are easily distinguished.
[14] The Meyer exception—even if we assume that TOPS recognizes one—only seems to apply when a factual issue is dispositive of the case and the respondent on judicial review concedes its error. Neither of those circumstances are present here. The arithmetic error in the agency decision in Meyer was a factual error that resulted in denial of a Medicaid application based solely on the value of the applicant‘s resources. Bookwalter does not identify any factual error in the Commission‘s decision that affected the outcome of the case. Rather, Bookwalter‘s case before the Commission and on judicial review rested on his argument that the Statute was unconstitutional, which the Commission has never conceded. The trial court correctly dismissed Bookwalter‘s AOPA claim.
II. Mootness
[15] Bookwalter argues that the public-importance exception to the mootness doctrine renders his appeal justiciable,
[16] A court may not, in general, consider a request for declaratory judgment if the case is moot or calls merely for an advisory opinion. City of Hammond v. Bd. of Zoning App., 284 N.E.2d 119, 126 (Ind. Ct. App. 1972) (citing Rauh v. Fletcher Sav. & Trust Co., 207 Ind. 638, 641, 194 N.E. 334, 336 (1935)). An opinion is “advisory when it would not change or affect legal relations between the parties.” Saylor v. State, 81 N.E.3d 228, 232 (Ind. Ct. App. 2017), trans. denied. By the time the Commission filed its motion to dismiss on May 11, 2022, the May 3, 2022, primary election had already occurred, rendering any decision by the court regarding the constitutionality of the Statute an impermissible advisory opinion. Consequently, the matter had been rendered moot.
[17] That said, both sides acknowledge that Indiana courts recognize an exception to the mootness doctrine for matters of “great public interest which [are] likely to recur.” T.W. v. St. Vincent Hosp. & Health Care Ctr., Inc., 121 N.E.3d 1039, 1042 (Ind. 2019). The parties differ, however, on whether the additional element of the issue evading review must also be present, with Bookwalter arguing that it need not be established and the Commission arguing that it must be. As Bookwalter points out, the Indiana Supreme Court‘s most recent pronouncements on the matter do not include “evading review” as a part of the great-public-interest exception to mootness. See Eunjoo Seo v. State, 148 N.E.3d 952, 954 n.1 (Ind. 2020) (“But irrespective of mootness, this case presents a novel, important issue of great public importance that will surely recur.“). We need not address the question of whether this issue evades review, however, if we conclude that Bookwalter has failed to establish either that the issues in this case are of great public interest or likely to recur. We need only address whether Bookwalter has carried his burden to establish that the issues in this case are likely to recur. We conclude that he has not.
[18] Bookwalter argues that the issues in this case are certain to recur, perhaps with himself. Bookwalter also argues that the issues in this case may affect many other potential candidates, i.e., persons who change party allegiance, a situation of which Bookwalter argues the Statute makes no allowance. Bookwalter notes that, as most Hoosiers do not vote in primaries, would-be candidates could be surprised to find themselves ineligible to run for office pursuant to the Statute, which would bar those who started voting in the primaries this year from running for office as a Republican or Democrat in the next primary. Bookwalter, however, does not establish that such things are likely to recur, only arguing that they could recur. Bookwalter points to nothing in the record tending to show that potential candidates are routinely denied appearances on primary ballots by operation of the Statute or that such denials will recur. Without more, given the bar on addressing constitutional issues unless absolutely necessary, see, e.g., Snyder, 958 N.E.2d at 786, we conclude that Bookwalter has failed to carry
[19] Moreover, we cannot ignore the fact that Bookwalter chose to wait over three weeks to petition for judicial review following the Commission‘s ruling. In fact, Bookwalter‘s petition was filed on the day of the statutory deadline for counties to receive delivery of printed absentee ballots, followed five days later by the statutory deadline for counties to begin mailing absentee ballots to eligible
voters. After these statutory deadlines passed, any ruling the trial court might have made in Bookwalter‘s favor would have amounted to nothing more than closing the barn door after the horse had left the barn. Under the circumstances of this case, with its admittedly compressed timeline, Bookwalter‘s delay in filing effectively eliminated any chance he had to keep his case “live.” Bookwalter could have petitioned for judicial review the day after the Commission‘s ruling, or soon thereafter, but chose to wait twenty-four days, until the very day absentee ballots were required by law to be delivered to counties. We agree with the trial court that Bookwalter effectively acceded to the preparation and distribution of absentee ballots without his name on them, after which it was too late.
[20] The judgment of the trial court is affirmed.
May, J., and Mathias, J., concur.