
ATTORNEYS FOR APPELLANT

Karen M. Freeman-Wilson
Attorney General of Indiana

Jon Laramore
Deputy Attorney General
Indianapolis, Indiana

ATTORNEYS FOR APPELLEES

Nana Quay-Smith
Candace L. Sage
Indianapolis, Indiana

R. Steven Ryan
Kentland, Indiana
__________________________________________________________________


                                   IN THE



                          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
            v.                    )
                                  )
KYLE D. CONRAD, Clerk of the      )     Indiana Court of Appeals
Newton Circuit Court, JERYL F.          )    Cause No. 56A05-0010-CV-451
LEACH,                            )
                                  )
      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
BOEHM, Justice.

                      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  Smart’s  death,  the
Clerk of the Newton Circuit Court certified the vacancy  to  Governor  Frank
O’Bannon.  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.[1]
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.  Leach’s  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 O’Bannon appointed William  Sammons  to  fill
the vacancy created by Judge Smart’s 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.  Leach’s  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.  Leach’s  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.  Leach’s
name was properly on the November 7  ballot;  2)  Mr.  Leach’s  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  candidate’s
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 Governor’s 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 been held.
      In 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
appointee’s 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,”[2] the 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. Leach’s  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 us.
      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 Senate’s 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.  Leach’s
certification, signed only by Marendt without authority of her  counterpart,
was invalid.  Nevertheless, the Newton County Clerk treated it as valid  and
placed Mr. Leach’s name and the office of Circuit Court Judge on the  ballot
of the November 2000 election.
      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   Marendt’s
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.

                                 Conclusion

      The judgment of the trial court is affirmed.

      SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] 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.
[2] 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.

