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Sunday, September 10, 2006

Ind. Courts - Mistake in filing may keep Cass Circuit jdge candidate off the ballot

Dave Kitchell of the Logansport Pharos-Tribune has had several stories over the past few weeks about a Cass County attorney's problems in getting his name on the ballot.

On Aug. 25 Kitchell reported:

A mistake that fell between the cracks of experience of a first-time candidate and a first-time county chairman may cost a Logansport attorney his chance at becoming Cass Circuit judge.

Democrat Leo Burns is awaiting word from state election officials today on his candidacy. Although Burns was chosen by precinct committeemen in a caucus to be slated as the party candidate in November, a notice of the caucus was not filed by Burns or County Chairman Matt Meagher with the state. Burns did file a declaration of candidacy and a statement of economic interest with the state, but the notice of the caucus must be filed. The Indiana Secretary of State has until noon today to certify candidates for the November election.

After returning from vacation earlier this month, Burns first discovered the error when he checked the Indiana Election Division Web site and found his name was not among the balloted candidacies. After placing a call to the division Aug. 7, he learned the next day his candidacy was not recognized because a notice of the caucus has not been filed with the state.

After consulting with election officials, Democrats held a second caucus Monday to choose Burns again based on a portion of Indiana law that allows parties to caucus a second time if a candidate is withdrawn from the election. Based on the series of events, Burns is claiming his candidacy has been withdrawn by the state.

“Actually the law requires, the way it is set up, if you call a caucus to fill a vacancy, the call of the caucus needs to be filed unless the Central Committee chairperson has received authority to appoint candidates himself.”

Cass Democratic Chairman Matt Meagher said Thursday he takes full responsibility for the error.

“It was my mistake,” he said.

Meagher, who took over the job from Dan Applebee, said he does not blame the Cass County Clerk’s Office for the error, which leaves the party without a candidate for Circuit Court judge against another first-time candidate, Republican Sheryl Pherson.

Burns said the Indiana Election Commission has 14 days to act on his candidacy, and if it rules against him, he has other avenues to appeal. Ironically, a job that deals with courts every day may involve one before the election.

“If I don’t prevail administratively, then the only option is to file a lawsuit in an effort to have a judge declare that I should be a candidate on the ballot,” Burns said.

“I haven’t given up.”

In Indiana, candidates for judge and prosecutor are considered pseudo state officeholders even though they are county officials because the bulk of their salaries are paid by the state. Nonetheless, Burns says because documentation of the first caucus that chose him was filed in Cass County, that should be a notice of the party intent to select him as its candidate.

This opinion piece appeared in the August 27th issue of the paper. Some quotes:
One problem with Indiana election law is that it allows candidates paid with state tax dollars to file in Indianapolis, but make only ministerial, advisory filings in their own counties. Candidates for the legislature, for example, are not even required to file in their own counties. For the sake of notifying everyone involved, it would make more sense to make the process reciprocal, so that if a candidate files in one location, all documents are automatically filed in another. If it can be done to make millions of Indiana motorists legal on the highways through the BMV, it ought to be easy to do with the Indiana Election Division. The BMV would not operate the way the Indiana Election Division does, and couldn’t. Given the recent problems with BMV services, holding it up as an example of good government is a stretch.

Stories such as Burns’ case raise issue with the reasons why candidates often avoid getting involved in politics. New candidates can be tripped up by technicalities. That can be discouraging for candidates and voters.

The ironic thing about outdated Indiana election law is that if Burns were already judge and he chose not to run again as Logansport City Councilwoman Mary Cotner did in the last election, he would continue to serve by default without filing for anything, anywhere.

What’s wrong with this process? When people who want to run for public office are unable to run because there is no documentation checklist when they file any document, the process itself becomes a way of sabotaging elections based on rules the average taxpayer who may want to run for office may not know. What’s really unfortunate is that no one in a position of authority is required to step forward before election deadlines and advise them what they need to know.

Finally, this story from Saturday, Sept. 9 reports:
Leo Burns wants to become a judge, but first, he will need to get a ruling in the courtroom where he some day wants to be employed.

The Logansport attorney has filed an action in Cass Circuit Court along with Logansport City Councilman Scott Kraud and former Logansport Mayor John Davis to be added to the ballot. Cass Circuit Judge Julian Ridlen, a Republican, has granted a hearing for a preliminary injunction that would prevent his name from being omitted from the November ballot.

The hearing is set for 10 a.m. Sept. 19.

Burns, who would be running against Republican Sheryl Pherson, says he has exhausted all other appeals through the Indiana Election Division which is part of the Secretary of State’s Office. He does not want to file legal action, but has no other way to challenge the process.

“The preliminary injunction hearing which is on the 19th is really the crucial hearing. The standard there is that we have to show a likelihood of prevailing in the long run in order to have a preliminary injunction issued. If the preliminary injunction is not issued, it does not necessarily mean we won’t be successful. The problem would be the timing of it. There just isn’t enough time between now and Oct. 1.”

By Oct. 1, absentee ballots will already be in the process of being distributed, Burns says.

“I have legal counsel. My legal counsel believes we’ve exhausted all administrative remedies.”

Burns says there does not appear to be another incidence like his in previous years on the books. One of the statutes that is being cited for preventing his candidacy just took effect in March, he says. Although forms were filed on time, the state is taking a different view of the campaign.

“Our position is that these forms complied with the timing aspect of it. They were filed in the wrong place.”

The documents were filed with the Cass County Clerk’s Office instead of with the state. County judge races are different from most other candidacies on county ballots because the positions are mostly funded by the state.
Burns is represented by Logansport attorneys Jim Austen and Courtney Justice.

Posted by Marcia Oddi on September 10, 2006 10:46 AM
Posted to Indiana Courts