ATTORNEYS FOR APPELLANT
Karen M. Freeman-Wilson
Attorney General of Indiana
Deputy Attorney General
ATTORNEYS FOR APPELLEES
Candace L. Sage
R. Steven Ryan
SUPREME COURT OF INDIANA
WILLIAM F. SAMMONS, Judge of )
the Newton Circuit Court )
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 56S00-0011-CV-635
KYLE D. CONRAD, Clerk of the ) Indiana Court of Appeals
Newton Circuit Court, JERYL F. ) Cause No. 56A05-0010-CV-451
Appellees (Plaintiffs Below). )
APPEAL FROM THE NEWTON SUPERIOR COURT
The Honorable Robert M. Hall, Special Judge
Cause No. 56D01-0009-MI-76
ON PETITION TO TRANSFER
December 22, 2000
Factual and Procedural Background
Newton Circuit Court Judge Robert Smart died on February 25, 2000. Judge
Smart was last re-elected in 1998 and his current term would have expired
December 31, 2004. Within ten days of Judge Smarts death, the Clerk
of the Newton Circuit Court certified the vacancy to Governor Frank OBannon.
On May 17, Jeryl Leach filed with the Secretary of State to have
his name placed on the ballot for Judge of the Newton Circuit Court.
Indiana Code section 3-8-1-16 sets out the requirements for a candidate for
Judge of the Circuit Court, and Mr. Leach met all of them.
On August 21, the Indiana Election Division issued a certification of candidates to
appear on the November 7, 2000 general election ballot. The office of
Newton Circuit Court Judge was not on this certification. In a separate
action that same day, Candy Marendt, Republican Co-Director of the Indiana Election Division,
unilaterally and without agreement by her Democratic co-director, issued a certification containing Mr.
Leachs name as the Republican candidate for Newton Circuit Court Judge. No
registered voter from Newton County filed a challenge to Mr. Leach as a
candidate with either the State Election Commission or the Newton County Election Board.
On September 1, Governor OBannon appointed William Sammons to fill the vacancy created
by Judge Smarts death. Judge Sammons also met all the statutory requirements
for Circuit Court Judge. Judge Sammons did not attempt to have his
name placed on the ballot for the November 7, 2000 general election because
he believed that Indiana Code section 3-13-6-1 provided that his appointed term would
end in 2002, not 2000, and he accepted the appointment with that understanding.
He has since closed his law practice and assumed the judicial office.
At the November 7 general election, Mr. Leach received some 3500 votes for
the office of Newton Circuit Court Judge. Mr. Leachs name was the
only name on the ballot for Newton Circuit Court Judge.
This appeal arose out of an action filed on September 27, by Mr.
Leach and Newton Circuit Court Clerk Kyle Conrad to seek a declaratory judgment
that Mr. Leach was properly certified as a candidate on the November 7,
2000 ballot. Judge Sammons filed a motion on October 23, for a
preliminary injunction enjoining Conrad from placing Mr. Leachs name on the ballot, but
that motion was denied. An effort to appeal the denial of preliminary
injunction was rendered moot by the intervening election. After conducting a hearing
on November 15, a special judge entered final judgment in favor of Mr.
Leach and Conrad, finding that: 1) Mr. Leachs name was properly on the
November 7 ballot; 2) Mr. Leachs election as Judge for a six-year term
beginning January 1, 2001, was valid; and 3) Judge Sammons appointed term expires
December 31, 2000. Judge Sammons appealed the judgment of the trial court
and we granted transfer pursuant to Appellate Rule 4(A)(9).
I. Indiana Code section 3-13-6-1
The principal issue presented by this case is whether the office of judge
of the Newton Circuit Court was an office eligible for election in the
November 2000 general election. Mr. Leach presented a candidates filing under the
appropriate statute, and was certified by the Indiana Election Division. That certification,
though defective for reasons explained in Part II, was not challenged until the
unsuccessful preliminary injunction motion of October 23. Judge Sammons concedes that this
procedural error in certification cannot be raised after the election if the substantive
ruling to place the office on the ballot was correct. Mr. Leach
received the majority of the votes in the election. As a result,
if the office was eligible for election by the voters of Newton County
in the fall of 2000, Mr. Leach was the winning candidate and should
take office on January 1, 2001.
The relevant constitutional provision is Article V, section 18. It states that
if a vacancy shall have occurred . . . in the
office of Judge of any Court, the Governor shall fill such vacancy, by
appointment, which shall expire when a successor shall have been elected and qualified.
Thus, the Governors power of appointment is limited to the period until
a successor is elected, but there is no other constitutional limitation on the
time for filling the vacancy after it occurs. In this case,
the appointment took place on September 1, 2000. At that time, the
period for filling vacancies on the ballot for offices that were up for
election on November 7, 2000 had expired, but the election had not yet
State ex rel. Custer v. Schortemeier, 197 Ind. 507, 516, 151 N.E.
407, 409 (1926), this Court held, at a time when there was no
relevant statute, that a circuit court vacancy is limited to the period until
the next general election. Accord. Stanek v. Marion County Election Board, 262
Ind. 397, 399, 316 N.E.2d 830, 832 (1974); Harrison v. Alexander, 224 Ind.
450, 454, 68 N.E.2d 784, 785 (1946); State ex rel. Middleton v. Scott
Circuit Court, 214 Ind. 643, 645-6, 17 N.E.2d 464, 465 (1938). The
General Assembly has since provided that a person appointed by the Governor to
fill a vacancy in a circuit court judgeship is to serve until (1)
the end of the unexpired term; or (2) a successor is elected at
the next general election and qualified; whichever occurs first. Ind. Code §
3-13-6-1 (1998). The statute, by its terms, thus provides for the term of
the appointee to run from the appointment until the next general election.
The next general election following the September 1 appointment was conducted on November
7, 2000. Judge Sammons argues that because the filing deadlines had expired
before the appointment was made, the next general election after the appointment will
be held in 2002. He notes that it may be difficult to
locate suitable candidates who must disrupt a law practice or other career path
if the guaranteed judicial career is measured in months. He points to
other practical difficulties in short-term or eve-of-election vacancies. We agree that the
statute may create significant practical problems in filling vacancies because of the statutory
limitation that the appointment expire at the next general election, but find the
statute to prohibit an appointment that survives the next general election. Biddle
v. Willard, 10 Ind. 62 (1857), the only authority Judge Sammons cites for
the contrary view, held that a resignation submitted before an election but to
take effect after the election did not create a vacancy subject to the
intervening election. The effective date of the resignation, not the date of
submission of the resignation, created the vacancy and was the trigger by which
the next election is measured. Here the death of Judge Smart was
the event that created the need for a successor to be elected.
Otherwise stated, the appointment defined the term of the appointee, but did not
affect the outer limits of the appointees term, which was and remained only
until a successor is elected and qualified. If a successor is elected
at the next general election, the beginning of the term of that person
is the point at which a successor shall have been elected and qualified,
as that phrase appears in Article V, section 18.
Judge Sammons points out that this statutory scheme creates an incentive for the
Governor to delay filling a vacancy, and at the same time raises significant
deterrents to acceptance of the position by qualified candidates. We agree that
these are persuasive considerations. Nevertheless, it is the scheme the General Assembly
has provided for circuit court vacancies. Although it presents difficulties for a
governor and an interim appointee, it is not irrational. The Constitution itself
contemplates the filling of this office only as an interim measure. And,
unlike most other offices where vacancies are filled for the unexpired term,
six-year term of a Circuit Judge will necessarily be in a different election
from other offices every other election. In contrast, the statewide offices of
Governor, Lieutenant Governor, and Attorney General are forever joined at the hip by
the four-year election cycle and the provision that vacancies are filled until the
end of the unexpired term, even if there is an intervening election.
Similar provisions apply to the other statewide offices that are elected in the
non-presidential election years, and to groups of county offices.
Mr. Leach, by filing and seeking an office that had not been filled,
correctly identified that a vacancy had been created that could be filled at
the next general election whether or not an interim appointment was made.
If there were no appointment by that time, the power to fill the
vacancy would be terminated as of January 1 of the following year if
the November election produced a winner who would be elected and qualified.
Similarly, if no circuit court judge had been elected in November, then a
vacancy would again arise, and the position could again be filled by appointment
until the 2002 election produced a successor. Whether this arrangement for circuit
court judges is preferable to the more prevalent scheme that permits an appointee
to serve for the remainder of the unexpired term is debatable. Both
Judge Sammons and Mr. Leach have effectively presented persuasive arguments for their respective
constructions of this statute. In the end, however, we conclude that the
General Assembly has provided for an election to fill the vacancy at the
earliest date and accordingly affirm the trial court on this issue.
II. Certification by One Co-Director of the Election Division
The trial court concluded that Mr. Leachs certification, signed by only one of
the two co-directors of the Indiana Election Division, was valid. The court
interpreted the language of Indiana Code section 3-6-4.2-3 and concluded that even though
the co-directors were intended to be equal, each of the co-directors may act
independently. We do not believe that this conclusion is correct in light
of the language of the statute and the limited legislative history available to
The original bill to establish the Indiana Election Commission and the Indiana Election
Division was passed by the Indiana House without amendment and slightly modified in
the Senate. Pub. L. No. 8-1995, §§ 1-34, 1995 Ind. Acts 1289-1310.
It replaced the partisan Election Board, controlled by the party of the
governor, that was responsible for some noteworthy decisions in the past. See
State Election Board v. Bayh, 521 N.E.2d 1313 (Ind. 1988). Because the
House rejected the Senates changes, the bill was brought to the conference committee.
There, the language providing for the leadership of the Election Division underwent
significant changes. Indiana House Journal at 1161 (1995). In the original
bill, the Election Division was to have a single executive director, appointed by
the bi-partisan Election Commission. Id. Because the Election Commission was designed
to have four members, two from each party, the director would have to
represent a compromise agreeable to both Republicans and Democrats. The version of
the bill that emerged from the conference committee, and that was eventually enacted
into law, created co-directors from two different political parties, to be appointed by
the governor. Ind. Code § 3-6-4.2-3 (1998). To ensure that both
co-directors truly represented their parties and were not merely nominal representatives, the governor
was required to select co-directors from persons nominated by the respective state party
chairs. Ind. Code § 3-6-4.2-8 (1998).
The attempt to create a truly bi-partisan Election Division extended past the co-directors
and into the administrative staff. Indiana Code section 3-6-4.2-5 provides that [t]he
employees of the election division must be divided equally between the major political
parties of the state. The Code also provides that the co-directors may
each employ an equal number of employees and [t]he commission shall provide equal
funding to each co-director with which to employ employees. Ind. Code §§
3-6-4.2-6 to -7 (1998). The Election Division even has oxymoronic co-general counsels.
It seems quite clear that the legislature intended the Election Division, like
the Commission, to be a perfectly balanced agency that could act only when
its co-directors agreed. To allow either to act unilaterally renders the deliberate
steps taken to maintain an equal budget and staff meaningless.
If a single co-director may not act independently, then Mr. Leachs certification, signed
only by Marendt without authority of her counterpart, was invalid. Nevertheless, the
Newton County Clerk treated it as valid and placed Mr. Leachs name and
the office of Circuit Court Judge on the ballot of the November 2000
Because there is no explicit statutory procedure for challenging an invalid certification from
the Election Division, the question is what remedy is appropriate. Mr. Leach
argues, and we agree, that the proper way to challenge an allegedly invalid
certification is provided in Indiana Code section 3-8-1-2. This is the general
statute allowing any registered voter to file a complaint with a county election
board or the Election Division questioning the eligibility of a candidate to seek
a particular office. A candidate may be ineligible because he or she
does not meet residency or other requirements for the office. This case
presents the far less typical scenario where the claim is that the candidate
is ineligible because the office itself is not properly on the ballot.
Although Marendts certification was made on August 21, no effort to review or
challenge that action was made until the preliminary injunction motion of October 23,
which was unsuccessful. Because the resolution of that issue ultimately turned on
the merits of the issue discussed in Part I, and because we conclude
the office was properly on the ballot, this is a moot point.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
The record does not reveal the procedure by which Mr. Leach was
selected, presumably pursuant to Indiana Code section 3-13-1-6, when no Republican filed in
the primary. The filing was made was within the time required by
Indiana Code section 3-13-1-7. Judge Sammons does not allege that there was
an error, other than the certification by Marendt, in the paperwork filed by
Mr. Leach to have his name placed on the ballot.
See Ind. Code § 3-13-4-3 (1998) (appointees to state office other than
governor, lieutenant governor, or a judicial office hold office for the remainder of
the unexpired term); Id. § 3-13-6-2 (appointed prosecuting attorneys hold office for the
remainder of the unexpired term). Persons appointed to most other courts of
record also serve the balance of an unexpired term. Ind. Code §
3-13-6-1(c) (1998). Many of these, unlike circuit courts, are not elected offices
in the first place.