Wednesday, November 22, 2006

 
plan to file this today:
Case No. 49A02-0611-CV-00977



Joell Palmer, )
Appellant, ) Petition for Rehearing of Denial of Interlocutory Appeal of ) Denial of Temporary Injunction
)
)
v. ) Case No.: 49D04-06 10-CT-044113
)
)
Marion County, State of Indiana, )
J. Bradley King, Todd Rokita, Kristi )
Robertson, Doris Anne Sadler, John )
Doe #1-4, Jane Doe 1-2, Amanda )
Bowling, Securatex, Jack Cottey, )
Defendant-Appellees ) Hon. Cynthia Ayres
_______________________ )
) )



Petition for Rehearing

Robbin Stewart
P.O. Box 164
Cumberland, IN 46229
317.650.9698
gtbear at gmail.com

Attorney for Appellant


Case No. 49A02-0611-CV-00977



Joell Palmer, )
Appellant, ) Petition for Rehearing of Denial of Interlocutory Appeal of ) Denial of Temporary Injunction
)
)
v. ) Case No.: 49D04-06 10-CT-044113
)
)
Marion County, State of Indiana, )
J. Bradley King, Todd Rokita, Kristi )
Robertson, Doris Anne Sadler, John )
Doe #1-4, Jane Doe 1-2, Securatex, )
Jack Cottey, Amanda Bowling )
Defendant-Appellees ) Hon. Cynthia Ayres
_______________________ )
) )



Petition for Rehearing

Robbin Stewart
P.O. Box 164
Cumberland, IN 46229
317.650.9698
gtbear at gmail.com

Attorney for Appellant


Table of Contents

Table of contents 3
Table of Authorities, 3
Statement of Issues, 3
Summary of Argument 3
Argument 4
A. Statement of the case. 4
B. Denial of injunction triggered 14 A 5. 6
C. Case is not moot. 7
Conclusion, 8
word count, and 9
Certificate of service. 9



Table of Authorities
App. Rule 14 A (5).
Statement of Issues:

Whether the court of appeals erred in denying jurisdiction over an appeal of right of the denial of a preliminary injunction.

Summary of Argument

Appeal as of right was improperly denied, when the best reading of the trial court’s ruling of “Denied” in response to a Motion for TRO and Temporary Injunction, is that it was a denial of a preliminary injunction, which may be appealed as of right under Rule 14 A (5). The appeal is not moot, factually or legally.





Argument
This motion is filed to replace a previously filed Motion for Reconsideration in order to comply with the Rules of Appellate Procedure.
A. Statement of the case. The ruling November 6th set out the facts and history of the case as follows.
ORDER

Appellant Joell Palmer by counsel has filed an Emergency Motion for
Stay, a Motion for Interlocutory Appeal and Expedited Review,
exhibits in support of those motions, and a Notice of Appeal.
The underlying facts are as follows. A general election will be
held tomorrow, on November 7, 2006. Indiana have promulgated statutes
requiring each voter to display photographic identification ("photo
ID") at his or her precinct as a condition of voting. Appellant has a
driver's license, but he does not want to display it at the polls out
of concern for his privacy. Shortly before the spring primary
election, Appellant went to the Bureau of Motor Vehicles to see if he
could obtain a free photo ID, but he was told that he is not eligible
for a free voter ID because he already has a driver's license.
Appellant was denied the opportunity to vote during the spring primary
election because he refused to display a photo ID. Instead, Appellant
was offered the opportunity to cast a provisional ballot. Appellant
executed a provisional ballot, but it was never counted. Appellant's
provisional ballot was not counted because Appellant refused to produce
his "voting license," and because Appellant refused to consent to a
search of his person at the City-County Building as a condition of
accessing the Marion County Election Board's office.
Appellant expects to be denied the opportunity to vote tomorrow if he
is not permitted to vote without showing a photo ID.
[page 2]
On October 27, 2006, Appellant filed with the trial court a Motion
for Temporary Restraining Order and Preliminary Injunction, a
Supporting Memo, and a Complaint for Injunction, Damages, and
Declaratory Relief against Marion County, the State of Indiana,
Secretary of State Todd Rokita, the co-directors of the Indiana
Elections Division, the Clerk of the Marion County Courts, unnamed
employees of the Secretary of State's office, unnamed precinct
officials who Appellant alleges prevented him from voting in the
spring, Securatex (which manages the security screening process at the
City-County Building), and Jack Cottey (a Securatex employee who
supervises the security screening process at the City-County
Building). In addition to the voting rights claim discussed above,
Appellant also alleged that the Indiana Election Division wrongfully
refused to place his name on the ballot as a candidate for the Indiana
General Assembly and wrongfully refused to allow him to register as an
official write-in candidate.

On November 1, 2006, the trial court denied Appellant's request for a
temporary restraining order ("TRO") with respect to the requirement
of showing a photo ID at the polls. The trial court did not rule on
Appellant's request for relief with respect to the requirement of
showing a voter ID at the polls. The trial court did not rule on
Appellant's request for relief with respect to his candidacy for
office or his alleged denial of access to the City-County Building. On
November 2, 2006, Appellant filed with the trial court a motion to
certify its November 1, 2006 ruling. The trial court has yet to rule
upon Appellant's motion to certify.
Appellant has filed a notice of appeal as well as a Motion for
Interlocutory Appeal and Expedited Review. Appellant also filed with
the Clerk of this Court a Motion for Emergency Transfer, which the
Indiana Supreme Court denied on Friday, November 3.
Appellant asks the court to stay the trial court's denial of his
request for a temporary restraining order. Appellant also asks the
Court to accept interlocutory jurisdiction over this case and expedite
its review so that an opinion is issued by the evening of November
6th, 2006.
Having reviewed the matter, the court FINDS AND ORDERS AS FOLLOWS:
(1) Appellant's Emergency Motion for Stay is DENIED.
(2) Because the trial court has not yet certified its order of
November 1, 2006, for discretionary interlocutory review, Appellant's
Motion for Interlocutory Review and Expedited Review is DENIED WITHOUT
PREJUDICE as to Appellant's right to request discretionary
interlocutory review if the trial court chooses to certify its order
of November1, 2006 for discretionary interlocutory review.
(3) Because the trial court's November 1, 2006 order was neither a
final judgment nor an interlocutory order appealable as of right
pursuant to Ind. Appellate Rule 14(A), Appellant's Notice of Appeal is
DISMISSED WITHOUT PREJUDICE as to Appellant's right to seek appellate
review after the entry of a final judgment or an interlocutory order
subject to appeal as of right.
(4) The clerk of the court is directed to send copies of this order
to the parties, and certified copies of this order to
The Honorable Cynthia J Ayres
Judge, Marion Superior Court, Civil Division
200 E Washington Street #T-1221
Indianapolis IN 46204
The Honorable Doris Anne Sadler
Clerk of the Marion Circuit and Superior Courts
200 E Washington Street, #W-122
Indianapolis IN 46204

(5) Clerk Sadler is DIRECTED to file a copy of this order under cause
number 49D04-0602-CT-044113 and cause the same to be spread of record.
ORDERED this 6th day of November, 2006.

Patrick D Sullivan, Acting Chief Judge
Baker, Vaidik, J.J., concur.

B. This statement of the facts and history is correct, with the exception of the italicized portion.
The trial court did not rule on
Appellant's request for relief with respect to the requirement of
showing a voter ID at the polls. The trial court did not rule on
Appellant's request for relief with respect to his candidacy for
office or his alleged denial of access to the City-County Building

The trial court’s one word ruling is ambiguous, but is best understood as a denial of the “Motion for Temporary Restraining Order and Preliminary Injunction.” Had it been merely a denial of the proposed order, the court would have set a hearing, as the motion requested. Because the order denied the preliminary injunction, there was nothing further to be heard. That the court denied the injunction without a hearing is relevant to the contention that the trial court abused its discretion. The Court of Appeals’ mistake in this regard is completely understandable in light of how Appellant phrased his appeal, focusing on the denial of the TRO, and in light of the expedited time frame in which the Court reached its decision. A motion for findings of fact and law remains pending in the trial court, which may help resolve this ambiguity. Perhaps the Court of Appeals is correct that the court below has yet to rule on various issues raised in the motion for TRO and injunction. But the best reading of the ambiguous order is that it was a denial of the motion to which it was attached.
If the order denied a preliminary injunction, it is subject to interlocutory appeal under 14 A 5.
Rule 14. Interlocutory Appeals A. Interlocutory Appeals of Right. Appeals from the following interlocutory orders are taken as a matter of right by filing a Notice of Appeal with the trial court clerk within thirty (30) days of the entry of the interlocutory order: (5) Granting or refusing to grant, dissolving, or refusing to dissolve a preliminary injunction;

C.) While the election has passed, the need for a temporary injunction continues and is not moot. Three or more election contests may hinge on whether provisional ballots are counted, and on whether the elections are invalid because more people were unlawfully prevented or deterred from voting by the ID rules. Two of these are state legislative races, and one is for the office of County Clerk of Posey County, where an uncounted provisional vote may decide the election, which was tied in the preliminary results, and currently shows the democrat leading by two votes going into a recount. http://www.courierpress.com/news/2006/nov/10/posey-clerk-race-ends-tie/
http://www.courierpress.com/news/2006/nov/21/posey-countys-new-clerk-wins-two-votes/
In the state representative - 97th district,

07A JON ELROD (REP). . . . . . . 4,446 50.04
07B EDMUND MAHERN (DEM) . . . . . 4,439 49.96

only 7 votes separate the apparent winner from the apparent loser. In this race, there are said to be 4 uncounted provisional ballots and 3 uncounted, but valid, absentee ballots. An election contest has been filed. In the 31st State Rep. district, the Republican is leading by as many as 27 votes. A recount is expected. In that race, there are probably fewer than 27 outstanding provisional ballots, so the issue would be whether it is likely that at least 27 prospective voters were prevented or deterred from voting, and whether it is likely that the outcome cannot now be determined.
Plaintiff contends that no provisional vote may be left uncounted for reason of failure to show ID, unless a warrant has authorized the search of that voter’s ID. Any provisional ballot arrangements that do not come with a presumption of validity deny the right to vote under the dual constitutions.
A second issue, Palmer’s ballot status, is now moot, for the purposes of the interlocutory appeal, because he did appear on the ballot and his approximately 322 votes have been certified, according to the county clerk’s website, www.indygov.org/clerk, visited November 21.
If the court of appeals has jurisdiction, it has authority to issue the emergency stay requested, with the facts updated to reflect the current status. The trial court has continued to withhold ruling on the motion for leave to appeal under 14 B.
Conclusion:
Plaintiff’s appeal as of right under 14 A 5 was improperly denied, perhaps based on a misunderstanding of whether the Court’s order was a ruling on the motion, and not merely a denial of the proposed temporary restraining order, and remains justiciable. The Court should reach the merits, decide whether provisional ballots of registered voters who did not produce ID should be counted, and decide whether elections tainted by voter suppression via voter ID were lawfully held. Plaintiff does not seek to invalidate the entire 2006 election, but only those specific races in which the margin of victory is less than the likely error caused by the voter suppression tactics, such that the will of the people was not expressed. This an extraordinary and disfavored remedy, but may be all that is available due to the failure of the trial, appeal, and supreme courts’ failure to resolve the merits before the election.
Word Count: At 1810 words, this filing is within the allowable length under the rules.
Respectfully Submitted,
Robbin Stewart
_______________
Certificate of Service
I hereby certify that on or by November 2, 2006, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, to the following, and an electronic copy was sent to Doug Webber's office.

Ian Stewart
James B. Osborn
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204

Doug Webber
Office of the Indiana Attorney General
Fifth Floor, IGC-South
302 W. Washington St.
Indianapolis IN 46204

____________________

Robbin Stewart #17147-53
P.O. Box 164 Cumberland, IN 46229
317.650.9698. gtbear at gmail com.

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