I caught some of the Twitter coverage of oral arguments in the Supreme Court’s review of the Indiana Recount Commission litigation on Charlie White. It occurred to me that there might be an argument to be made that the State is judicially estopped from arguing that White was legally registered at his ex-wife’s residence.
Seems to me, you have one arm of the State in the form of the Prosecutor in the criminal case arguing (pdf) (successfully) that White was lying when he claimed his ex-wife’s place as his residence. Specifically the State took the position that on or about February 23, 2010, White committed fraud by representing that his address was on Broad Leaf Lane in Fishers when he knew he was living on Overview Drive in Fishers. The State obtained a conviction against White on that basis.
On the contrary, however, another arm of the State in the form of the Recount Commission is taking the position (pdf) (h/t Indiana Law Blog) in front of the Supreme Court that during that period of 2010, White resided at the Broad Leaf address and that his registration at the Broad Leaf address was proper. (Brief of Recount Commission at p. 6, 11.)
Maybe there is an exception when the party is as big as the State of Indiana where the left hand is not accountable to the right hand. But, generally speaking, the doctrine of judicial estoppel says:
Judicial estoppel is a judicially created doctrine that seeks to prevent a litigant from asserting a position that is inconsistent with one asserted in the same or a previous proceeding. “Judicial estoppel is not intended to eliminate all inconsistencies; rather, it is designed to prevent litigants from playing ‘fast and loose’ with the courts. The primary purpose of judicial estoppel is not to protect litigants but to protect the integrity of the judiciary.” “The basic principle of judicial estoppel is that, absent a good explanation, a party should not be permitted to gain an advantage by litigating on one theory and then pursue an incompatible theory in subsequent litigation.
Morgan County Hosp. v. Upham, 884 N.E.2d 275, 280 (Ind. Ct. App. 2008).
The State embraced the position that White was fraudulently claiming residence at the Broad Leaf address in March of 2011, following a grand jury investigation, when the Prosecutor filed its indictment in the Hamilton Superior Court. It embraced the contrary position that White resided at the Broad Leaf Address, following the Recount Commission hearing, on June 28, 2011 when the Commission entered its own findings of fact.
It’s not a slam dunk, by any means, but I think there is a reasonably strong argument to be made that the State of Indiana is barred from taking these inconsistent positions before different courts on where Charlie White resided in February 2010.
Is an indictment the proper point in time, and not the time where the argument was actually forwarded to the fact-finder (i.e. the trial)?
Honestly, I don’t think there are hard and fast concrete rules or bright lines in this area. But, I’d argue that the State used the judicial authority to take concrete, adverse action against White when it filed the indictment in March 2011.
Doug, it’s worse than that. You now have the Attorney General’s Office arguing one side in the civil case, the other side in the criminal case, even though basically the same facts are involved. The AG really should recuse himself in the civil case.
Well, believe it or not, finally something we agree on.
Sorry, Doug, but the Attorney General is under no obligation to defend a special prosecutor who improperly applied the law and got a grand jury to indict White and then a jury to convict him on charges that cannot be sustained by any court applying the applicable laws in this state. In fact, I would argue he has the opposite legal duty. You seem to suggest that because an over zealous prosecutor out to destroy White at any cost managed to obtain convictions against him, the state’s Attorney General is now obligated to uphold the illegalities and errors committed at the grand jury and trial court stages in his criminal court and abstain from pointing out those errors. Thank God you’re not sitting on the Supreme Court. Justice Sullivan even went so far during oral argument today to say that it remained to be seen whether those criminal convictions would be sustained, let alone Judge Rosenberg’s ruling, which completely stood decades-old election law on its head. He said he expected the Supreme Court to hear the criminal case on appeal before it’s all over as well. When Mike Nifong, the North Carolina prosecutor used the state as an instrument to press criminal charges against the Duke Lacrosse players for a rape that he knew the evidence showed they didn’t commit, the state went after him and his license to practice law as it rightfully should have done. The AG hasn’t argued anything yet in that criminal case because no formal appeal has been filed yet. I believe it has a legal duty to correct the errors made by the special prosecutors and the trial judge and not simply defend those convictions on appeal if the office truly believes what it’s arguing in the Recount Commission case, which I believe it does.
He appears to have made himself pretty easy to destroy, over-zealous prosecutor notwithstanding.
So how are they dealing with the fact that, even if White were not eligible for the ballot, the “challenge period” to get him thrown off the ballot had passed (it was before the election)?
If nothing else, White WAS eligible for the ballot on that basis, irrespective of his actual residency status.
Don’t suppose you have a cite handy to the statute setting the challenge period? Seems odd that missing a statutory period wouldn’t have gotten the challenge bounced pretty quickly in the early going.
My take is that, if his registration was fraudulent, then he was never registered and never an eligible candidate. But, if there was a statutory period to raise that issue and that period was blown, then I guess I’d reconsider.
Read this. Page 7.
Doug, The statutory period for filing the challenge had past. The Democrats even conceded that point during their argument. The AG attempted to get the S.C. to reverse Judge Rosenberg’s original ruling reversing the Recount Commission’s dismissal of the challenge on that basis. The S.C. declined to take the case because Justice David ruled that the administrative remedies had not been exhausted and the case was, therefore, not ripe for appeal until the Recount Commission reheard the complaint it had originally dismissed and ruled upon it. The S.C. made a big mistake in not taking up that issue on appeal originally in my opinion because there was a legal issue that needed to be determined—whether the time period for filing the complaint pursuant to statute and consistent with the Burke v. Bennett ruling made the challenge moot.
What’s the code cite barring the filing of the challenge?
IC 3-8-8-3
Who may challenge; filing requirements
Sec. 3. (a) An individual who challenges the qualification of a candidate for election to an office must be a registered voter of the election district the candidate seeks to represent.
(b) A challenge under this chapter must be filed with the election division not later than noon seventy-four (74) days before the date of the general election at which a candidate to the office is to be elected.
(c) The challenger must file a sworn statement with the election division:
(1) questioning the qualification of a candidate to seek the office; and
(2) setting forth the facts known to the voter concerning this question.
Seems to be in conflict with IC 3-12-11. I hate Title 3. It’s such a cluster.
The AG’s office also cited this provision of Article 2 of the Constitution as the grounds for removing White from office post-election (other than a felony conviction following him taking office):
Section 6. Every person shall be disqualified from holding office, during the term for which he may have been elected, who shall have given or offered a bribe, threat, or reward, to procure his election.
White was not accused of taking a bribe, theetening anyone or otherwise offering a reward for his election so that rules out that post-election option for his removal. The only basis is his removal upon the conviction for a felony after taking office pursuant to state law.
Only if he actually was properly certified as the winner of the election in the first place. The question is whether he was actually elected. If, for example, 95% of the votes went to me as write-ins, even though I wasn’t an eligible candidate under the statutory guidelines, I don’t think I could claim Constitutional entitlement to the office or constitutional protections from removal if I was improperly awarded a certificate of election.
The statutory cite bears more consideration, however.
Of course he was properly certified, Doug. He won the election by a landslide. The eligibility challenge was brought too latee, and by the November election, White was registered in the proper precinct by agreement of all the parties, the only basis the Democrats raised for challenging him, which was a very doubtful legal basis for challenging him anyway since it was undisputed that he was a registered voter.
I’m glad you’re so certain. But, seems White just got tagged with a felony by 12 people who agreed that White’s registration was an act of fraud. That registration was a prerequisite to his eligibility to receive a certification.
That’s why I offered the hypothetical of me getting 95% of the votes in a write in but where I didn’t jump the through all of the hoops the General Assembly imposes on candidate eligibility. A certification of election wouldn’t be proper even though the citizens of Indiana were crying out (understandably) for me to be the officeholder.
That said, I can’t say you’re wrong about the time period under IC 3-8-8-3. If that’s the way the Supreme Court goes, I’ll be interested to see how it reconciles IC 3-12-11.
No conflict in the statutes, Doug. The statute you cite is for recount contests where the results of the votes cast in an election are being challenged. The Democrats weren’t seeking a recount; they were seeking to have him declared ineligible.
Not exclusively. It speaks to candidate ineligibility as well.
I could be wrong, but I think White waived the timeliness issue before the Recount Commission, and so it is a non-issue. Besides, the facts which White worked so hard to cover up were not revealed until I did so in late September 2010, well past the supposed deadline you refer to. Or do you suggest that White should get the benefit of what Judge Nation (and 2 juries) found was intentional misconduct intended for his political advantage?
I don’t accept criminal convictions that are based on a total misapplication of the law, Mr. Purvis. Unlike you, I believe in the rule of law. I don’t decide how the law is going to be applied based upon the person’s political affiliation. People like you frighten the hell out of me because you could care less whether the law is properly applied when the person on the receiving end is someone with whom you politically disagree. I have faith that our Supreme Court can rise above the partisan hack mentality that pervades the thinking of too many people.
Mr. Welsh, I actually had fewer disagreements with Charlie White as a member of the Fishers Town Council than other members of that body that I could name. My investigation showed a deliberate attempt to claim one property by White as his residence when it was convenient for him, and another in an attempt to keep his seat on the Town Council. It was a deliberate plan to deceive, and if you had heard Judge Nation’s comments at the sentencing, he said virtually the same thing. The law WAS properly applied, and the entire process was in the hands of members of White’s own political party. That hardly makes it “partisan hack mentality”. White’s own arrogant assumption that he was above the law and that no one would catch his misdeeds was his undoing.