                                                                                                 FILED
                                                                                         Aug 21 2020, 8:16 am

                                                                                                 CLERK
                                                                                             Indiana Supreme Court
                                                                                                Court of Appeals
                                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Louis Denney                                               Brian M. Pierce
      Muncie, Indiana                                            Muncie, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      John P. Hampton,                                           August 21, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 20A-MI-143
              v.                                                 Appeal from the Delaware Circuit
                                                                 Court
      Audie Barber,                                              The Honorable Peter D. Haviza,
      Appellee-Plaintiff.                                        Special Judge
                                                                 Trial Court Cause No.
                                                                 18C02-1911-MI-873



      Najam, Judge.


                                         Statement of the Case
[1]   John P. Hampton, a Muncie City Councilman, appeals the trial court’s order

      granting Audie Barber’s request for a permanent injunction following his

      complaint for ouster of an unlawful office holder in which the court concluded

      that, under Indiana Code Section 3-5-8-1(e), Hampton is not eligible to hold a




      Court of Appeals of Indiana | Opinion 20A-MI-143 | August 21, 2020                         Page 1 of 8
      seat on the Muncie City Council. Hampton raises two issues for our review,

      which we revise and restate as follows:


              1.       Whether Barber had standing to file the complaint against
                       Hampton.

              2.       Whether Indiana Code Section 3-8-1-5(e) is
                       unconstitutional as applied to him.


[2]   We affirm.


                                  Facts and Procedural History
[3]   At some point in 2019, an at-large councilman on the Muncie City Council

      either withdrew or resigned from his position, and his seat became available.

      Hampton, Barber, and two other individuals applied to the Democratic Central

      Committee to fill the vacancy. On August 27, the committee held a caucus to

      vote for a candidate to fill the position. Hampton received the most votes, and

      Barber came in third. Accordingly, the precinct committeemen selected

      Hampton to fill the vacant seat on the city council.


[4]   Thereafter, on November 7, Barber discovered that Hampton had been

      convicted of two prior felony convictions that were later reduced to

      misdemeanors. Accordingly, on November 19, Barber filed a verified

      complaint and information for ouster of an unlawful office holder and for a

      permanent injunction. In that complaint, Barber alleged that Indiana Code

      Section 3-8-1-5(d) and (e) precluded any person who had been convicted of a

      felony from assuming or being a candidate for an elected office even if that

      Court of Appeals of Indiana | Opinion 20A-MI-143 | August 21, 2020           Page 2 of 8
      felony had been later reduced to a misdemeanor. Accordingly, Barber

      maintained that Hampton was not eligible to serve as an elected official because

      of his prior convictions. Barber also asserted that he was authorized to file the

      complaint against Hampton because he had an interest in the office.

      Specifically, he alleged that he had been an unsuccessful candidate for the same

      council seat and that he would again attempt to hold that office if a vacancy

      were to occur as a result of his complaint against Hampton.


[5]   The court held a hearing on Barber’s motion on December 18. At that hearing,

      Barber introduced evidence that, on June 19, 1998, Hampton pleaded guilty to

      dealing in marijuana, as a Class D felony, in Monroe County. See Ex. Vol. III

      at 6. Barber also introduced evidence that, on June 30, 2000, Hampton pleaded

      guilty to possession of a controlled substance, as a Class D felony, in Brown

      County. See id. at 4. Hampton did not dispute his criminal history, but he

      testified that the trial court had reduced both of his offenses to Class A

      misdemeanors following his successful completion of probation. Hampton then

      asserted that Barber was not “a proper person” to bring the complaint against

      him because Barber had finished third out of four at the caucus election and, as

      such, that Barber did not have an interest in the office. Tr. at 19.


[6]   Following the hearing, the court entered findings and conclusions. Specifically,

      the court found that Barber “has an interest in the office, in that he was also a

      candidate, albeit unsuccessful[.]” Appellant’s App. Vol. II at 34. The court

      also found that Indiana Code Section 3-8-1-5(d) and (e) prohibits any person

      who has been convicted of a felony from holding office even if that conviction

      Court of Appeals of Indiana | Opinion 20A-MI-143 | August 21, 2020           Page 3 of 8
      was later reduced to a misdemeanor. Accordingly, the court concluded that

      Barber had standing to file the complaint against Hampton and that Hampton

      “is not eligible to hold any seat” on the city council. Id. This appeal ensued.


                                      Discussion and Decision
                                       Issue One: Barber’s Standing

[7]   Hampton first asserts that Barber lacked standing to file the complaint against

      him. In determining that Barber was a proper person to file the complaint, the

      trial court issued findings of fact and conclusions thereon. As this Court has

      recently stated:


              Where, as here, issues are tried upon the facts by the trial court
              without a jury, and the trial court enters specific findings sua
              sponte, we apply a two-tiered standard and determine whether the
              evidence supports the findings, and then whether the findings
              support the judgment. Findings and conclusions will be set aside
              only if they are clearly erroneous, that is, when the record
              contains no facts or inferences to support them. A judgment is
              clearly erroneous when our review of the record leaves us with a
              firm conviction that a mistake has been made.


      VanHawk v. Town of Culver, 137 N.E.3d 258, 265 (Ind. Ct. App. 2019) (internal

      citations omitted).


[8]   Here, Barber filed his complaint against Hampton pursuant to Indiana Code

      Section 34-17-1-1(1) (2020), which provides that an information may be filed

      against any person when that person “usurps, intrudes into, or unlawfully holds

      or exercises a public office” in Indiana. And Indiana Code Section 34-17-2-


      Court of Appeals of Indiana | Opinion 20A-MI-143 | August 21, 2020           Page 4 of 8
       1(a)(2) provides that that information may be filed by the prosecuting attorney

       or “by any other person on the person’s own relation, whenever the person

       claims an interest in the office” that is the subject of the information.


[9]    On appeal, Hampton asserts that the evidence does not support the trial court’s

       finding that Barber had standing to file the complaint against him. As this

       Court has previously stated, a private person may file an information to

       determine the right of a party to hold office “only if he claims an interest on his

       own relation or a special interest beyond that of a taxpayer.” City of Gary v.

       Johnson, 621 N.E.2d 650, 652 (Ind. Ct. App. 1993). The individual “must

       demonstrate a personal interest distinct from that of the general public, which

       interest must be in the right or title to the office.” Id. Indeed, our Supreme

       Court has held that an individual is authorized to file such an action when that

       individual “lives in the district from which he claims the appointee must be

       selected and by his own act has made himself a candidate for that office.” State

       ex rel. Brown v. Cir. Ct. of Marion Cty., 430 N.E.2d 786, 787 (Ind. 1982).


[10]   Here, the undisputed evidence demonstrates that Barber is a resident of the City

       of Muncie. The evidence further shows that Barber applied for the vacant seat

       on the Muncie City Council, which vacancy was ultimately filled by Hampton.

       And the evidence indicates that Barber would again apply for that office should

       another vacancy occur as a result of the instant proceedings. That evidence

       demonstrates that Barber had a personal interest in the office beyond that of the

       general public. See id. We are not persuaded by Hampton’s bald assertion that

       Barber lacked a personal interest in the office simply because he placed third in

       Court of Appeals of Indiana | Opinion 20A-MI-143 | August 21, 2020           Page 5 of 8
       the caucus election. Rather, we hold that the evidence supports the trial court’s

       finding that Barber had a special interest in the office, and that finding supports

       the court’s conclusion that Barber had standing to file the complaint against

       Hampton.


                Issue Two: Constitutionality of Indiana Code Section 3-8-5-1(e)

[11]   Hampton next asserts that Indiana Code Section 3-8-1-5(e) is unconstitutional

       as applied to him. As the Indiana Supreme Court has stated:


               A challenge to the constitutionality of a statute is a pure question
               of law, which we review de novo. All statutes are presumptively
               constitutional, and the court must resolve all reasonable doubts
               concerning a statute in favor of constitutionality. That being
               said, unlike the higher burden faced by those making a facial
               constitutional challenge, those challenge the statute as applied
               need only show the statute is unconstitutional on the facts of a
               particular case.


       State v. Thakar, 82 N.E.3d 257, 259 (Ind. 2017) (cleaned up).


[12]   Indiana Code Section 3-8-1-5(d)(3)(C) provides, in pertinent part, that a person

       is disqualified from assuming or being a candidate for an elected office if, in a

       guilty plea hearing, the person pleads guilty to a felony. Further, Indiana Code

       Section 3-8-1-5(e)(3) provides that the subsequent reduction of a felony to a

       Class A misdemeanor after the person has pleaded guilty to a felony does not

       affect the operation of subsection (d).


[13]   On appeal, Hampton contends that Indiana Code Section 3-8-5-1(e)(3) violates

       Article 1, Section 23 of the Indiana Constitution, which states that the “General

       Court of Appeals of Indiana | Opinion 20A-MI-143 | August 21, 2020             Page 6 of 8
       Assembly shall not grant to any citizen, or class of citizens, privileges or

       immunities, which, upon the same terms, shall not equally belong to all

       citizens.” Specifically, Hampton asserts that, “[o]nce a person’s D felony

       conviction is reduced to an A misdemeanor, that person is no different than [a]

       person who had a conviction on [his] record for any Class A misdemeanor.”

       Appellant’s Br. at 13. Accordingly, he asserts that Indiana Code Section 3-8-5-

       1(e)(3) “treats the two differently without any distinguishable differences.” Id.


[14]   However, it is well settled that the “failure to challenge the constitutionality of a

       statute at trial results in waiver of review on appeal[.]” Plank v. Cmty. Hosps. of

       Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013). And, here, Hampton did not

       challenge the constitutionality of the statute under Article 1, Section 23 of the

       Indiana Constitution before the trial court. 1 By not raising this issue before the

       trial court, the fact finder was denied an opportunity to receive and consider

       evidence in support of this challenge. As such, we conclude that this issue is

       not properly before us, and he has waived this issue for our review.


[15]   In sum, the evidence supports the trial court’s finding that Barber has a special

       interest in the city council seat, and that finding supports the court’s conclusion

       that Barber had standing to file the complaint against Hampton. And Hampton




       1
         During the hearing on Barber’s complaint, Hampton briefly and without further comment stated that he
       “believe[d]” that the statute violated the Fourteenth Amendment to the United States Constitution. Tr. at 14.
       To the extent that that one statement could be construed as a challenge to the constitutionality of the statute
       under the federal constitution, an appellant cannot argue one legal theory before the trial court and present a
       different theory on appeal. See Phillips v. State, 22 N.E.3d 749, 762 (Ind. Ct. App. 2014).

       Court of Appeals of Indiana | Opinion 20A-MI-143 | August 21, 2020                                 Page 7 of 8
       has waived for our review the issue of whether Indiana Code Section 3-8-1-

       5(e)(3) violates Article 1, Section 23 of the Indiana Constitution as applied to

       him. We therefore affirm the trial court’s order.


[16]   Affirmed.


       Bradford, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 20A-MI-143 | August 21, 2020        Page 8 of 8
