FILED Apr 11 2023, 9:25 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michelle C. Harter INDIANA ELECTION Lekse Harter, LLC COMMISSION Greenwood, Indiana Theodore E. Rokita ATTORNEY FOR AMICUS CURIAE LIBERTY Attorney General of Indiana DEFENSE POLITICAL ACTION COMMITTEE Frances Barrow Deputy Attorney General Meghan C. Carver Greenfield, Indiana Melinda R. Holmes Deputy Attorney General Indianapolis, Indiana ATTORNEY FOR APPELLEE DANIEL HOLTZ Andrew M. Hicks Warrick & Boyn, LLP Elkhart, Indiana
IN THE COURT OF APPEALS OF INDIANA
Amy Rainey, April 11, 2023 Appellant-Petitioner, Court of Appeals Case No. 22A-PL-1548 v. Appeal from the Marion Superior Court Indiana Election Commission, The Honorable Gary L. Miller, Daniel Holtz, Judge Trial Court Cause No. Appellees-Respondents 49D03-2203-PL-7383
Court of Appeals of Indiana | Opinion 22A-PL-1548 | April 11, 2023 Page 1 of 7 Opinion by Judge Kenworthy Judges Bradford and Pyle concur.
Kenworthy, Judge.
[1] Last year, Amy Rainey tried to run for public office, seeking candidacy as a
Republican candidate in the May 2022 primary election. Daniel Holtz—the
local party chair—challenged her candidacy, alleging Rainey was not affiliated
with the party in the way Indiana Code Section 3-8-2-7 requires. In February,
the Indiana Election Commission upheld the challenge. At that point, there
was only one way Rainey could appear on the May ballot: Rainey had to seek
judicial review of the Commission’s decision, starting at the trial court level.
[2] In March, Rainey filed for judicial review. And with the primary approaching,
Rainey also sought preliminary relief, asking the trial court for a preliminary
injunction and an emergency stay of the Commission’s decision. The trial
court held a hearing on those requests. On March 31—one month before the
primary—the court issued an interlocutory order denying preliminary relief.
[3] At that point, Rainey did not pursue an interlocutory appeal. Put differently,
she did not immediately seek an appellate decision about granting preliminary
relief. Because of the status quo, Rainey did not appear on the primary ballot.
[4] After the election, the trial court held a hearing on Rainey’s claims. Those
claims were: (1) The Commission made a mistake in upholding the challenge;
(2) The Commission deprived Rainey of due process; and (3) Indiana Code
Section 3-8-2-7(a)(4) (the “Affiliation Statute”)—the law underlying the
Court of Appeals of Indiana | Opinion 22A-PL-1548 | April 11, 2023 Page 2 of 7 candidacy challenge—violated the United States Constitution and the Indiana
Constitution. In June, the trial court issued a final order denying Rainey relief.
[5] Rainey now appeals for the first time, even though she could have pursued an
interlocutory appeal before the primary election. Rainey had the right to an
interlocutory appeal because the court refused Rainey’s request to “grant . . . a
preliminary injunction[.]” Ind. Appellate Rule 14(A)(5). Even if Rainey could
not pursue an interlocutory appeal as of right, any litigant may pursue a
discretionary interlocutory appeal under Appellate Rule 14(B). Moreover, the
Appellate Rules accommodate urgency, creating procedures for shortened
briefing deadlines in an interlocutory appeal, see App. R. 14(G)(2), as well as
procedures for an emergency stay of the underlying decision, see App R. 39(D).
[6] Was Rainey required to pursue an interlocutory appeal? No. See, e.g., Bojrab v.
Bojrab, 810 N.E.2d 1008, 1014 (Ind. 2004) (“A claimed error in an interlocutory
order is not waived for failure to take an interlocutory appeal but may be raised
on appeal from the final judgment.”). 1 May Rainey appeal now? Absolutely.
See Ind. Const. art. 7, § 6 (providing “in all cases an absolute right to one
appeal”); id. art. 1, § 12 (specifying “[a]ll courts shall be open” and guaranteeing
a “remedy by due course of law”); see also, e.g., Bojrab, 810 N.E.2d at 1014.
1 Sometimes an order “[i]ssued by an Administrative Agency” is “by statute . . . expressly required to be appealed as a mandatory interlocutory appeal.” App. R. 14(A)(9). We discern no such requirement here.
Court of Appeals of Indiana | Opinion 22A-PL-1548 | April 11, 2023 Page 3 of 7 [7] Yet by waiting for the election to pass, Rainey changed the nature of her case.
That is, before the election, it was possible for Rainey to appear on the ballot.
But after the election, no court could turn back the clock. Therefore, regardless
of the outcome—indeed, even if Rainey prevailed—a judicial opinion would
not change the legal relationship between Rainey and the defendants (Holtz and
the Commission). There was no longer a concrete controversy between them.
[8] In short, after the election, no court could render “effective relief . . . to the
parties[.]” In re Lawrance, 579 N.E.2d 32, 37 (Ind. 1991). Therefore, the case
became moot. See State ex rel. Pruitt v. Lake Cir. Ct., 201 N.E.2d 332, 333 (Ind.
1964) (determining a case involving a similar timeline had become moot where
“the primary election . . . had passed before th[e] case could be put at
issue . . . and decided”); see also Lawrance, 579 N.E.2d at 37 (noting a case is
moot “[w]hen the concrete controversy at issue in a case ‘has been ended or
settled, or in some manner disposed of, so as to render it unnecessary to decide
the question involved’” (quoting Dunn v. State, 71 N.E. 890, 891 (Ind. 1904))).
[9] When a case is moot, a court typically dismisses. Mosley v. State, 908 N.E.2d
599, 603 (Ind. 2009). That is because, without a concrete controversy, any
judicial opinion is, “for all practical purposes,” an advisory opinion. I.J. v.
State, 178 N.E.3d 798, 799 (Ind. 2022) (per curiam) (quoting Mosley, 178
N.E.3d at 603). We generally “do not provide advisory opinions,” Hill v. State,
592 N.E.2d 1229, 1230 (Ind. 1992), and instead focus on resolving live cases
and controversies, see Mosley, 908 N.E.2d at 603. We avoid issuing advisory
opinions because the Indiana Constitution calls for separation of powers. See
Court of Appeals of Indiana | Opinion 22A-PL-1548 | April 11, 2023 Page 4 of 7 Ind. Const. art. 3, § 1 (creating “three separate departments”—“the Legislative,
the Executive including the Administrative, and the Judicial”—and specifying
“no person, charged with official duties under one of these departments, shall
exercise any of the functions of another, except as . . . expressly provided”).
[10] As to separation of powers, even if a case is not moot (i.e., ripe), “it is a cardinal
principle of the judicial function that we will pass upon the constitutionality of a
coordinate branch’s action only when it is absolutely necessary[.]” Snyder v.
King, 958 N.E.2d 764, 786 (Ind. 2011) (emphasis omitted). This doctrine of
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FILED Apr 11 2023, 9:25 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michelle C. Harter INDIANA ELECTION Lekse Harter, LLC COMMISSION Greenwood, Indiana Theodore E. Rokita ATTORNEY FOR AMICUS CURIAE LIBERTY Attorney General of Indiana DEFENSE POLITICAL ACTION COMMITTEE Frances Barrow Deputy Attorney General Meghan C. Carver Greenfield, Indiana Melinda R. Holmes Deputy Attorney General Indianapolis, Indiana ATTORNEY FOR APPELLEE DANIEL HOLTZ Andrew M. Hicks Warrick & Boyn, LLP Elkhart, Indiana
IN THE COURT OF APPEALS OF INDIANA
Amy Rainey, April 11, 2023 Appellant-Petitioner, Court of Appeals Case No. 22A-PL-1548 v. Appeal from the Marion Superior Court Indiana Election Commission, The Honorable Gary L. Miller, Daniel Holtz, Judge Trial Court Cause No. Appellees-Respondents 49D03-2203-PL-7383
Court of Appeals of Indiana | Opinion 22A-PL-1548 | April 11, 2023 Page 1 of 7 Opinion by Judge Kenworthy Judges Bradford and Pyle concur.
Kenworthy, Judge.
[1] Last year, Amy Rainey tried to run for public office, seeking candidacy as a
Republican candidate in the May 2022 primary election. Daniel Holtz—the
local party chair—challenged her candidacy, alleging Rainey was not affiliated
with the party in the way Indiana Code Section 3-8-2-7 requires. In February,
the Indiana Election Commission upheld the challenge. At that point, there
was only one way Rainey could appear on the May ballot: Rainey had to seek
judicial review of the Commission’s decision, starting at the trial court level.
[2] In March, Rainey filed for judicial review. And with the primary approaching,
Rainey also sought preliminary relief, asking the trial court for a preliminary
injunction and an emergency stay of the Commission’s decision. The trial
court held a hearing on those requests. On March 31—one month before the
primary—the court issued an interlocutory order denying preliminary relief.
[3] At that point, Rainey did not pursue an interlocutory appeal. Put differently,
she did not immediately seek an appellate decision about granting preliminary
relief. Because of the status quo, Rainey did not appear on the primary ballot.
[4] After the election, the trial court held a hearing on Rainey’s claims. Those
claims were: (1) The Commission made a mistake in upholding the challenge;
(2) The Commission deprived Rainey of due process; and (3) Indiana Code
Section 3-8-2-7(a)(4) (the “Affiliation Statute”)—the law underlying the
Court of Appeals of Indiana | Opinion 22A-PL-1548 | April 11, 2023 Page 2 of 7 candidacy challenge—violated the United States Constitution and the Indiana
Constitution. In June, the trial court issued a final order denying Rainey relief.
[5] Rainey now appeals for the first time, even though she could have pursued an
interlocutory appeal before the primary election. Rainey had the right to an
interlocutory appeal because the court refused Rainey’s request to “grant . . . a
preliminary injunction[.]” Ind. Appellate Rule 14(A)(5). Even if Rainey could
not pursue an interlocutory appeal as of right, any litigant may pursue a
discretionary interlocutory appeal under Appellate Rule 14(B). Moreover, the
Appellate Rules accommodate urgency, creating procedures for shortened
briefing deadlines in an interlocutory appeal, see App. R. 14(G)(2), as well as
procedures for an emergency stay of the underlying decision, see App R. 39(D).
[6] Was Rainey required to pursue an interlocutory appeal? No. See, e.g., Bojrab v.
Bojrab, 810 N.E.2d 1008, 1014 (Ind. 2004) (“A claimed error in an interlocutory
order is not waived for failure to take an interlocutory appeal but may be raised
on appeal from the final judgment.”). 1 May Rainey appeal now? Absolutely.
See Ind. Const. art. 7, § 6 (providing “in all cases an absolute right to one
appeal”); id. art. 1, § 12 (specifying “[a]ll courts shall be open” and guaranteeing
a “remedy by due course of law”); see also, e.g., Bojrab, 810 N.E.2d at 1014.
1 Sometimes an order “[i]ssued by an Administrative Agency” is “by statute . . . expressly required to be appealed as a mandatory interlocutory appeal.” App. R. 14(A)(9). We discern no such requirement here.
Court of Appeals of Indiana | Opinion 22A-PL-1548 | April 11, 2023 Page 3 of 7 [7] Yet by waiting for the election to pass, Rainey changed the nature of her case.
That is, before the election, it was possible for Rainey to appear on the ballot.
But after the election, no court could turn back the clock. Therefore, regardless
of the outcome—indeed, even if Rainey prevailed—a judicial opinion would
not change the legal relationship between Rainey and the defendants (Holtz and
the Commission). There was no longer a concrete controversy between them.
[8] In short, after the election, no court could render “effective relief . . . to the
parties[.]” In re Lawrance, 579 N.E.2d 32, 37 (Ind. 1991). Therefore, the case
became moot. See State ex rel. Pruitt v. Lake Cir. Ct., 201 N.E.2d 332, 333 (Ind.
1964) (determining a case involving a similar timeline had become moot where
“the primary election . . . had passed before th[e] case could be put at
issue . . . and decided”); see also Lawrance, 579 N.E.2d at 37 (noting a case is
moot “[w]hen the concrete controversy at issue in a case ‘has been ended or
settled, or in some manner disposed of, so as to render it unnecessary to decide
the question involved’” (quoting Dunn v. State, 71 N.E. 890, 891 (Ind. 1904))).
[9] When a case is moot, a court typically dismisses. Mosley v. State, 908 N.E.2d
599, 603 (Ind. 2009). That is because, without a concrete controversy, any
judicial opinion is, “for all practical purposes,” an advisory opinion. I.J. v.
State, 178 N.E.3d 798, 799 (Ind. 2022) (per curiam) (quoting Mosley, 178
N.E.3d at 603). We generally “do not provide advisory opinions,” Hill v. State,
592 N.E.2d 1229, 1230 (Ind. 1992), and instead focus on resolving live cases
and controversies, see Mosley, 908 N.E.2d at 603. We avoid issuing advisory
opinions because the Indiana Constitution calls for separation of powers. See
Court of Appeals of Indiana | Opinion 22A-PL-1548 | April 11, 2023 Page 4 of 7 Ind. Const. art. 3, § 1 (creating “three separate departments”—“the Legislative,
the Executive including the Administrative, and the Judicial”—and specifying
“no person, charged with official duties under one of these departments, shall
exercise any of the functions of another, except as . . . expressly provided”).
[10] As to separation of powers, even if a case is not moot (i.e., ripe), “it is a cardinal
principle of the judicial function that we will pass upon the constitutionality of a
coordinate branch’s action only when it is absolutely necessary[.]” Snyder v.
King, 958 N.E.2d 764, 786 (Ind. 2011) (emphasis omitted). This doctrine of
strict necessity flows from “the unique place and character, in our scheme, of
judicial review of governmental action for constitutionality.” Id. (quoting
Citizens Nat’l Bank of Evansville v. Foster, 668 N.E.2d 1236, 1241 (Ind. 1996)).
[11] Still, we may address the merits of a moot case under limited circumstances.
See, e.g., E.F. v. St. Vincent Hosp. & Health Care Ctr., Inc., 188 N.E.3d 464, 466
(Ind. 2022) (per curiam). That is, Indiana courts “have discretion to decide
moot cases that present questions of great public importance likely to recur.”
Id. at 465. Although the exception is narrow, this discretion is “broad.” Id. at
466. In short, if justice requires an opinion, we have the discretion to issue one.
[12] The Indiana Supreme Court recently addressed the merits in a consolidated
appeal involving citizens involuntarily committed to mental health institutions.
See T.W. v. St. Vincent Hosp. & Health Care Ctr., Inc., 121 N.E.3d 1039 (2019) (per
curiam). In each case, the commitment order had expired. See id. at 1040–41.
Even though the cases were moot because of the timeline, the Court applied the
Court of Appeals of Indiana | Opinion 22A-PL-1548 | April 11, 2023 Page 5 of 7 public-interest exception and addressed the merits. See id. at 1042–44. The
Court later discussed the function of the public-interest exception in that
context, explaining: “[A]ppellate courts are not required to issue an opinion in
every moot temporary commitment appeal, but they may readily do so to
address novel issues or close calls, or to build the instructive body of law to help
trial courts make these urgent and difficult decisions.” E.F., 188 N.E.3d at 466.
[13] Turning to the case at hand, the parties briefed the mootness issue. We also
held oral argument, where we explored mootness and the propriety of applying
the public-interest exception. 2 As to the public-interest exception, the parties
identified competing interests, highlighting tensions among (1) a candidate’s
interest in reaching the ballot, (2) a voter’s interest in meaningful choice at the
ballot, and (3) a political party’s interest in self-regulation. Rainey also asserted
the parties—and the public—could benefit from our guidance on the claims.
[14] Without a doubt, this case involves vital public interests. At the same time,
unlike cases involving temporary civil commitments, candidacy challenges do
not involve the immediate deprivation of personal liberty. And a challenge
under the Affiliation Statute—directed toward Rainey or any other prospective
candidate—is generally less likely to recur than a matter involving legal
intervention to support a person with a mental-health condition. See, e.g., id. at
465–67 (discussing a series of cases involving temporary commitment orders).
2 We thank those in attendance, who respectfully observed the oral argument, and we commend counsel for the skilled oral advocacy. We also thank amicus—Liberty Defense PAC—for helpful briefing in this matter.
Court of Appeals of Indiana | Opinion 22A-PL-1548 | April 11, 2023 Page 6 of 7 Moreover, it is not as though this case involves a straightforward challenge
under the Affiliation Statute. Rather, there was a mismatch between Rainey’s
basis for party affiliation and the allegations Holtz made on his challenge form.
This sort of mismatch seems even less likely to recur. Further, we acknowledge
Rainey’s assertion that an advisory opinion would provide useful guidance
regarding the constitutionality of the Affiliation Statute and, among other
things, the proper course and scope of administrative proceedings. That said,
the public would benefit from an advisory opinion in many kinds of cases.
Even so, we must remain mindful of the judicial function, respecting
constitutional boundaries calling for restraint. Finally, and even more to the
point, we cannot ignore that Rainey could have appealed before the election.
Indeed, she had the chance for a timely and effective judicial opinion.
[15] All in all, under the circumstances, we dismiss the case as moot. Cf. Pruitt, 201
N.E.2d at 333 (dismissing as moot where the case involved exclusion from the
ballot and the election had passed); I.J., 178 N.E.3d at 799 (granting transfer,
vacating an advisory opinion from this Court, and dismissing the case as moot).
[16] Dismissed.
Bradford, J., and Pyle, J., concur
Court of Appeals of Indiana | Opinion 22A-PL-1548 | April 11, 2023 Page 7 of 7