Thursday, December 22, 2011

Democrat Judge Stands Decades Of Election Law On Its Head: Rules Landslide Winner Of 2010 Secretary Of State's Office Ineligible To Hold Office

Decades of Indiana court decisions have liberally applied residency requirements for candidates to elective office in Indiana. The Indiana Supreme Court said Evan Bayh could work and reside in Washington, D.C. for more than two years, even take an income tax deduction for his move there, without giving up his residence in Indiana. A judicial candidate who lived and worked as a patent lawyer for the federal government in Washington, D.C. for many years was allowed to claim a voting residence in Indiana at his parent's home and run for office in Indiana while he continued to reside in Washington with his wife and children. Yet, a Democratic-elected circuit court judge in Marion County has turned those and many other court decisions on their head and found that Charlie White, who has resided his entire adult life in Hamilton County, Indiana was an ineligible voter and, therefore, an ineligible candidate for the office of Secretary of State to which he was elected in a landslide election over his Democratic opponent in the 2010 general election.

Today, Marion County Circuit Court Judge Louis Rosenberg released an order overturning a unanimous decision of the Indiana Recount Commission (that he actually signed yesterday) finding White to be an eligible voter and candidate for the office he holds and sided with a complaint filed by the Indiana Democratic Party. Rosenberg handed down his decision just days before the most holy of Christian holidays ordering the Recount Commission to certify the losing Democratic candidate, Vop Osili, as the winner of a race in which he received only 38% of the vote. The decision on the eve of the Christmas holiday makes it impossible for the Recount Commission to meet quickly and provide the required 48-hour notice for holding emergency meetings. White and the Indiana Attorney General's Office plan to appeal the decision. Because of the urgency of deciding who has the right to hold a constitutionally-elected office, the matter is likely to be appealed directly to the Supreme Court. White will continue to hold the office while the matter is appealed unless otherwise ordered.

You will recall that Judge Louis Rosenberg's daughter, Erin, is one of the first Democratic activists to investigate and make the case that White should be declared ineligible to run for the office of secretary of state just weeks before the November, 2010 election based on the fact that White claimed his ex-wife's home as his residence for voting purposes for a several month period before he sought the Republican nomination for secretary of state and before he moved into his new residence with his second wife following his marriage to her. Rosenberg's daughter, who had worked on the staff of U.S. Rep. Andre Carson (D) and was attending law school, published her findings and legal arguments in a partisan political blog. She publicly called on the Republican prosecutor to recuse herself from deciding how to handle the case, pressing for the appointment of a special prosecutor. White's ex-wife's home had served as the marital residence during his marriage to her, and he testified before the Recount Commission that he struggled financially as his ex-wife re-mortgaged the marital residence in her name before was able to close on the purchase of a condominium he intended to live in with his second wife. Both his current wife and second wife gave testimony before the Recount Commission that supported White's contention that he intended to establish his voting residence at his ex-wife's home before his marriage and permanent move into the new home he purchased. At all times, White resided in Hamilton County where he has resided his entire adult life since graduating from college.

The Indiana Constitution requires a person, in order to be eligible to serve as governor or lt. governor, must be at least 30 years of age and reside in the state for a minimum period of five (5) years before seeking the office. In contrast, the state constitution imposes no age or residency requirement on the persons who hold the other constitutional offices in Indiana, including secretary of state. State law imposes a requirement that a person be a registered voter of the state. There is no dispute that White was at all times a registered voter of Indiana. Judge Rosenberg has added a further requirement not expressly provided in statute that a person must also be "legally" registered to vote in the precinct in which they cast a vote. After returning the decision to the Recount Commission for rehearing after it earlier rejected the Democratic Party's complaint against White, the three-panel commission, including a former Democratic judge, unanimously agreed that the evidence supported White's contention that he had intended to make his ex-wife's home his residence for voting purposes prior to his marriage to his second wife consistent with applicable Indiana statutory and case law.

While Judge Rosenberg cautioned that he was not concluding that White's actions were "fraudulent" or "constituted a crime," he found that the same evidence heard by the Recount Commission led him to conclude that White was illegally registered to vote. Judge Rosenberg found the evidence made it clear to him that White did not intend to make his wife's residence his permanent voting address; therefore, he concluded he was not legally registered to vote there and could not have been a candidate for secretary of state. The ruling, if carried through to its practical impact, would result in many prominent elected officials, past and present, being declared unlawfully registered to vote. Sen. Richard Lugar, for example, has registered to vote, cast numerous ballots and stood for election every six years since 1976 from a home he sold more than three decades ago. Based on Rosenberg's analysis, it would be impossible to find an intent for Lugar to permanently reside at a home in which he long ago gave up an ownership interest. Marion Co. Prosecutor Terry Curry refused to investigate a complaint White had forwarded to his office challenging Lugar's voter registration. A community activist, Greg Wright, has subsequently filed a complaint with the Indiana Election Commission challenging Lugar's voting residency, which is currently under review by the staff. A Democratic staffer for the Election Division has told the media he believes the Election Commission should investigate the allegations contained in the Lugar complaint.

You can read Judge Rosenberg's eight-page ruling here. Note that Judge Rosenberg's order was dated yesterday. Yet he held up its release until near the close of business today, after many were already getting an early start on their Christmas holiday weekend. I fully anticipate that it will be rejected by the Supreme Court unless the court decides to overrule decades of standing precedent to find in favor of the Democratic Party and take the extraordinary step of overturning the election of the popularly-elected choice of the voters for the office of secretary of state.

UPDATE: This decision poses a complicated predicament for the Recount Commission. You may recall that Tom Wheeler had been appointed as a Republican chairman of the commission to substitute for White since he could not decide a challenge to his own eligibility as the Secretary of State. Wheeler is unsure that he is even eligible to resume that post since he stepped down following the Recount Commission's unanimous decision in White's favor last June. Wheeler wonder whether he has authority to convene a meeting of the Commission to request a formal appeal of the decision. The Evanville Courier-Press's Eric Bradner explains:

The steps the Recount Commission must take to deal with Rosenberg’s ruling get complicated.
Wheeler’s capacity, he said, is not quite clear. He was appointed to lead the panel when White, who would otherwise have been the chairman, removed himself. But once the panel made its decision, it – and his position – dissolved.
“It stopped as a matter of law. Right now there is no Recount Commission; there is no chair of the Recount Commission,” he said.
Wheeler, who was appointed by Indiana Republican Party Chairman Eric Holcomb to replace White, who would normally serve on the panel, said he would call for a meeting, which would require 48 hours’ public notice ahead of time, if he could.
“I’ve asked the attorney general’s office for an opinion as to whether I am chairman or not; whether I can convene a meeting or not,” Wheeler said. “Am I in? Am I out? If I’m out, does the Republican Party chair reappoint a chairman?”
Regardless of Wheeler's legal standing to chair the Commission, the Attorney General has a legal duty to appeal the Commission's decision since it was a validly-constituted state governmental authority acting within the scope of its authority in rendering its well-founded decision on the Democratic Party's complaint. State GOP Chairman Eric Holcomb is calling for a direct appeal of the decision to the Supreme Court. Indiana Attorney General Greg Zoeller's office issued a statement indicating he would appeal the decision to the Court of Appeals.
“One obligation of our office is to represent state government boards such as the Indiana Recount Commission in lawsuits, and when a board’s unanimous administrative decision is overturned by a court, the order should be reviewed by a higher court. We will seek a stay of the court’s ruling and are in communication with our client the Recount Commission to discuss the process of an appeal.”
Fox 59 News had a rushed story tonight claiming White was already out of his job after Judge Rosernberg's highly questionable ruling. White will remain in office while the decision is under appeal if past precedents are any guide.


Jon E. Easter said...

You can disagree with Judge Rosenberg on his decision, but to call his judicial temperament into question based upon his family...or even to imply beyond the pale. Shame on you.

Gary R. Welsh said...

If I had a relative as close as a daughter who had so publicly helped initiate a complaint against a standing elected official, I would recuse myself so that there would be no appearance of impartiality. Ms. Rosenberg and other Democrats publicly called on the Hamilton Co. prosecutor to recuse herself from investigating White simply because she was from the same political party as him. She complied with their request. I think the Republican attorneys made a grave error in not asking Judge Rosenberg to recuse himself given his daughter's role in bring about this election contest. The Indiana Supreme Court rebuked then-Marion Co. Superior Court Judge Cale Bradford because he participated in deciding among a panel of judges a redistricting dispute over the city-county council maps because his brother happened to sit on the city council at the same time. The Democrats screamed bloody murder over Bradford's participation at the time. Chief Justice Randy Shepard recused himself from participating in Mike Tyson's appeal of his rape conviction simply because of something his wife said to Alan Dershowitz at a cocktail party in passing. It's always hypocrisy on these matters when it comes to members of your party. You can bend the election rules all you want to benefit your candidates at the same time you want to club over the head any Republican for the smallest of infractions.

Gary R. Welsh said...

I would add that my position of asking for a recusal is on solid legal footing. I raised this issue months ago and you didn't see the bar association criticizing my public opinion like they did Abdul's when he went so far as to claim that Judge Rosenberg had engaged in ex parte' discussions with Democratic party leaders concerning the case. I accept that legal professionals differ on the standard for a judicial officer to recuse him or herself in such matters, but it cannot be said that an attorney is in any way violating his professional duties as an officer of the court merely by raising the issue when reasonable people can argue whether "for appearance sake alone", a judicial officer should recuse himself. I personally don't think Chief Justice Shepard should have recused himself in the Tyson case based on the facts there, but I respected his decision to remove any appearance of impartiality given the fact that Dershowitz had raised the issue.

Charlotte A. Weybright said...

If you read the opinion, it seems pretty simple to me: 1) He did not establish a "permanent" residence as required, and 2) he didn't timely file his correct registration as required by the statutorily mandated date.

This has nothing to do with the party of the judge or his daughter's activity. This is about a candidate who couldn't (or wouldn't) follow legal registration requirements of the very office he was seeking.

How is it standing decades of election law on its head? Or is that just to make the post sound more believable? Doesn't work once one reads and understands the opinion.

Paul K. Ogden said...

Gary, I've always liked Judge Rosenberg and thought he was fair. But I 100% agree attorneys have the right to raise these issues and if you were the attorney for White you'd in fact have the duty to do so. We need to stop being so sensitive about judicial criticism. As my mentor Judge Paul Buchanan used to say, accepting public criticism is part of the job as a judge. If it bothers you you need to get in another line of work.

Concerned Taxpayer said...

We must always remember...there is the law...and there are democrats.

Gary R. Welsh said...

Is this the same Charlotte who was suspended from the practice of law? Three members of the Recount Commission, including a respected attorney and a respected former Democratic judge agree with my interpretation of the residency law for voting registration purposes. They each have more familiarity and experience with these laws than Rosenburg. Let's see what the Supreme Court has to say. They can only concur with his ruling by overturning well-established law.

AmericanVet said...

Recusal refusal is law misusal. Sorry, but frankly this entire thing stinks to high Heaven! If White is not a resident then neither was Bayh and certainly Dick Lugar lost his Indiana residency years ago!

Gary R. Welsh said...

Paul, If the shoe were on the other foot the Democrats would be standing in front of the city-county building holding a press conference and demanding the removal of the judge from the bench for participating in the decision. The Democrats are street fighters. They will sucker punch, hit below the belt or otherwise do whatever it takes to get the upper hand in a political debate. The Republicans are always too feeble in defending themselves and get steamrolled every time.

Paul K. Ogden said...

The flaw in the decision is that Judge Rosenberg did not decide where White should have been registered. In the opinion, he seems to acknowledge that it would have been inappropriate to register at the condo since he had not moved in yet. So, if that's the case, where should White have registered. Certainly not the apartment since his lease expired and he had long ago moved out.

The only place White could have legally registered to vote was his ex-wife's house, which is what he did. Judge Rosenberg refers to that as a "temporary" abode. His definition of what is temporary is hopelessly would disenfranchise scores of people living in apartments and other rental units while they wait to move into houses.

The bottom line is everyone has a residence. The only residence of White's you can point to is his ex-wife's house. Judge Rosenberg's ruling means people can be without residences and thus disenfranchised and rendered ineligible to run for office. The law doesn't work like that.

Gary R. Welsh said...

Well said, Paul. The party that has cried foul over Voter ID laws for years now is stripped bare for all to see. Legitimate, taxpaying citizens are now subject to criminal prosecution and forfeiture of the office to which they were dutifully elected because they happened to find themselves in between marriages and homes. It's a very sad day for the democratic process in this country. It's no wonder good people avoid public service like the plague. Only the people who lie, cheat and steal seem to get ahead in politics today. The rest of us are publicly attacked and subjected to a violation of our fundamental constitutional rights for daring to exercise our fundamental rights in a democratic society.

Marycatherine Barton said...

I too am surprised that Judge Rosenberg was not asked to recuse himself in this case. In addition, I also expect that the Supreme Court of Indiana will reject his decision.