FILED Apr 19 2023, 8:53 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES Michelle C. Harter Theodore E. Rokita Lekse Harter, LLC Attorney General of Indiana Greenwood, Indiana Frances Barrow AMICUS CURIAE PRO SE CURT NISLY Supervising Deputy Attorney General Curt Nisly Indianapolis, Indiana Milford, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas Charles Bookwalter, April 19, 2023 Appellant-Petitioner, Court of Appeals Case No. 22A-PL-1981 v. Appeal from the Marion Superior Court Indiana Election Commission, The Hon. Cynthia J. Ayers, Judge Gregory L. Irby, and Cody Trial Court Cause No. Eckert, 49D04-2203-PL-8226 Appellees-Respondents.
Opinion by Judge Bradford. Judges May and Mathias concur.
Bradford, Judge.
Court of Appeals of Indiana | Opinion 22A-PL-1981 | April 19, 2023 Page 1 of 12 Case Summary 1
[1] Indiana law requires a person declaring candidacy for a party’s primary election
to confirm that the person is, in fact, affiliated with the party. Pursuant to
Indiana Code section 3-8-2-7 (“the Statute”), a would-be primary candidate can
make this showing by voting for the party in the two most recent primary
elections in which he voted, Ind. Code § 3-8-2-7(a)(4)(A), or by obtaining
certification of affiliation with the party from the party’s county chairperson.
Ind. Code § 3-8-2-7(a)(4)(B). After failing to establish party affiliation to run for
United States Representative in the May of 2022 Republican Party’s primary
election by either method provided by the Statute, Thomas Bookwalter brought
a combined suit for judicial review under the Administrative Orders and
Procedures Act (“AOPA”) and for declaratory and injunctive relief. The trial
court dismissed Bookwalter’s suit. Bookwalter contends that the trial court
erred in dismissing his AOPA suit on the ground that he did not file the agency
record on time, his claims for declaratory and injunctive relief on the ground
that they are moot, and his constitutional challenges to the Statute on the
ground that they lack merit. Because we conclude that Bookwalter has failed to
preserve his AOPA suit for appellate review and that his other claims are moot,
we affirm.
1 We held oral argument in this matter on March 30, 2023. We commend counsel for the high quality of their presentations. We also thank amicus Curt Nisly for helpful briefing in this matter. Finally, we thank those in attendance for their interest.
Court of Appeals of Indiana | Opinion 22A-PL-1981 | April 19, 2023 Page 2 of 12 Facts and Procedural History [2] On January 6, 2022, Bookwalter submitted to the Indiana Election Division
form CAN-2, declaration of candidacy for primary nomination in 2022, seeking
placement on the primary ballot of the Republican Party for the office of United
States Representative. The Statute provides, in part, as follows:
(4) A statement of the candidate’s party affiliation. For purposes of this subdivision, a candidate is considered to be affiliated with a political party only if any of the following applies: (A) The two (2) most recent primary elections in Indiana in which the candidate voted were primary elections held by the party with which the candidate claims affiliation. If the candidate cast a nonpartisan ballot at an election held at the most recent primary election in which the candidate voted, a certification by the county chairman under clause (B) is required. (B) The county chairman of: (i) the political party with which the candidate claims affiliation; and (ii) the county in which the candidate resides; certifies that the candidate is a member of the political party. Ind. Code § 3-8-2-7(a)(4). A candidate may indicate on the CAN-2 form that he
meets either the party affiliation voting requirement or has obtained
certification from the county chair affirming membership in the party.
Bookwalter checked neither box on the form he submitted to the Indiana
Election Division.
[3] On February 8, 2022, Gregory Irby filed a CAN-1 form with the Indiana
Election Commission (“the Commission”) (which is a challenge to a candidate
Court of Appeals of Indiana | Opinion 22A-PL-1981 | April 19, 2023 Page 3 of 12 filing) on the basis that Bookwalter “[d]id not vote in 2 Republican Primaries.
No approval from Chair.” Appellant’s App. Vol. II p. 51. Cody Eckert also
filed a CAN-1 form two days later, asserting that Bookwalter had filed an
incomplete CAN-2. “More specifically, this individual left question 3 on the
form blank. It is also known, this individual has not voted in 2 republican
primaries as required.” Appellant’s App. Vol. II p. 56.
[4] On February 18, 2022, the Commission conducted a hearing and heard
testimony on the challenges to Bookwalter’s candidacy. Bookwalter testified
that he had not voted in the 2020 Republican primary because the party
candidates had run unopposed. Bookwalter also testified that the county chair
had “refused to certify that I’m a party member despite my having provided her
with an affidavit detailing my lifelong support for the party and of living its best
core values.” Appellant’s App. Vol. II p. 69. Bookwalter argued that the
Statute is unconstitutional, asking that the Commission refrain from enforcing
the Statute and deny the challenges to his candidacy. The Commission voted
unanimously to uphold the challenges to Bookwalter’s candidacy.
[5] On March 14, 2022, or twenty-four days after the Commission’s decision,
Bookwalter petitioned for judicial review, filed a complaint for declaratory and
injunctive relief, and petitioned for an emergency stay. Bookwalter’s petition
for judicial review asked the trial court to reverse the Commission’s decision
and restore his name to the ballot. Bookwalter argued that the Statute violated
his right to freedom of association under the First and Fourteenth
Amendments, is vague and overbroad, and is an invalid ex post facto law as
Court of Appeals of Indiana | Opinion 22A-PL-1981 | April 19, 2023 Page 4 of 12 applied to him. The petition for stay asked the trial court to stay the
Commission’s ruling and restore his name to the ballot.
[6] The trial court denied the petition for stay on April 1, 2022. The trial court
observed that March 14, 2022, the date on which Bookwalter had filed his
petition for judicial review, was also the statutory deadline for counties to
receive delivery of printed absentee ballots, and March 19, 2022, was the
statutory deadline for counties to begin mailing absentee ballots to eligible
voters. “Ballots have already been mailed and some voters have returned their
ballots and have designated their candidate choices.” Appellant’s App. Vol. II
p. 13. The trial court found that “Bookwalter effectively acceded to the printing
and mailing of ballots without his name included as a candidate.” Appellant’s
App. Vol. II p. 13.
[7] On April 27, 2022, Bookwalter filed a motion to certify the April 1, 2022, denial
of his petition for a stay for interlocutory appeal. The primary election was
conducted on May 3, 2022. The Commission moved to dismiss on May 11,
2022, arguing that Bookwalter had not filed the agency record as required by
AOPA and, because the May of 2022 primary election had concluded, his
complaint for declaratory and injunctive relief was moot. Following a hearing,
the trial court declined to certify the denial of Bookwalter’s petition for a stay
for interlocutory appeal.
[8] On August 8, 2022, the trial court granted the Commission’s motion to dismiss.
The trial court determined that Bookwalter had not timely filed the official
certified agency record, thereby mandating dismissal of his AOPA complaint.
Court of Appeals of Indiana | Opinion 22A-PL-1981 | April 19, 2023 Page 5 of 12 The trial court also concluded that Bookwalter’s complaint for declaratory and
injunctive relief was moot because the May of 2022 primary election had
concluded, meaning that any decision by the trial court on his constitutional
claims “would be an impermissible advisory opinion.” Appellant’s App. Vol. II
p. 24.
Discussion and Decision [9] At the outset, it should be noted that, pursuant to the doctrine of constitutional
avoidance, this court avoids addressing the constitutionality of a statute when
another avenue is available. Ind. Wholesale Wine & Liquor Co., Inc. v. State ex rel.
Ind. Alcoholic Beverage Comm’n, 695 N.E.2d 99, 108 (Ind. 1998). This “policy of
judicial restraint” stems from our tripartite system of government. Id. at 107.
As the Indiana Supreme Court has explained:
On occasion, to perform properly its constitutional function, a court must address and resolve the constitutionality of a legislative enactment. But when it does so, it is an exercise of the power to decide the case before it. To do so when not required to decide the case can impinge upon the law-making function which separation of powers reserves for the legislature. Id. Put differently: “[I]t 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).
[10] With this in mind, we turn to Bookwalter’s argument that the trial court erred
in granting the Commission’s motion to dismiss. We review a trial court’s
Court of Appeals of Indiana | Opinion 22A-PL-1981 | April 19, 2023 Page 6 of 12 ruling on a motion to dismiss for failure to state a claim de novo. Charter One
Mortg. Corp. v. Condra, 865 N.E.2d 602, 604 (Ind. 2007). “A motion to dismiss
for failure to state a claim upon which relief can be granted tests the legal
sufficiency of the claims, not the facts supporting it.” Thornton v. State, 43
N.E.3d 585, 587 (Ind. 2015) (citing Kitchell v. Franklin, 997 N.E.2d 1020, 1025
(Ind. 2013)).
I. Bookwalter’s AOPA Claim [11] Bookwalter filed his petition on March 14, 2022, and had thirty days within
which to file the agency record or request an extension of time to do so. Ind.
Code § 4-21.5-5-13. It is undisputed that Bookwalter did not file the agency
record by the April 13, 2022, deadline or at any time thereafter. The
Commission argues that the trial court properly dismissed Bookwalter’s petition
for judicial review on this basis, while Bookwalter argues that, pursuant to
relevant Indiana Supreme Court precedent, dismissal of a petition for judicial
review for failure to file the agency record is not appropriate when the facts are
undisputed.
[12] Indiana Code section 4-21.5-5-13 requires that a petitioner for judicial review
“shall transmit to the court the original or a certified copy of the agency record
for judicial review of the agency action” and further provides that “[f]ailure to
file the record within the time permitted by this subsection, including any
extension period ordered by the court, is cause for dismissal of the petition for
review by the court.” The Indiana Supreme Court has interpreted these
provisions as requiring dismissal of a petition for judicial review where the
Court of Appeals of Indiana | Opinion 22A-PL-1981 | April 19, 2023 Page 7 of 12 petitioner fails to file the agency record or request an extension in a timely
manner. Teaching Our Posterity Success, Inc. v. Ind. Dept. of Educ. and State Bd. of
Educ. (TOPS), 20 N.E.3d 149, 155 (Ind. 2014); see also First Am. Title Ins. v.
Robertson, 19 N.E.3d 757, 762–63 (Ind. 2014) (relying on TOPS). In TOPS, the
Indiana Supreme Court held that “a petitioner for review cannot receive
consideration of its petition where the statutorily-defined agency record has not
been filed.” 20 N.E.3d at 155; see also First Am. Title Ins., 19 N.E.3d at 761–63
(concluding that the trial court had erred in not dismissing petition for judicial
review where petitioner had failed to file the agency record within thirty days of
filing the petition).
[13] Bookwalter argues that his case falls under what he refers to as the “Meyer
exception,” while the Commission argues that TOPS does not allow for any
exceptions to the filing rule and that the Court was merely noting that Indiana
Family and Social Services Administration v. Meyer, 927 N.E.2d 367 (Ind. 2010),
had presented “extremely narrow” circumstances under which a failure to file
the agency record had been excusable in that case. We need not determine
whether TOPS allows for a Meyer exception, however, as the facts of that case
are easily distinguished.
[14] The Meyer exception—even if we assume that TOPS recognizes one—only
seems to apply when a factual issue is dispositive of the case and the respondent
on judicial review concedes its error. Neither of those circumstances are
present here. The arithmetic error in the agency decision in Meyer was a
factual error that resulted in denial of a Medicaid application based solely on
Court of Appeals of Indiana | Opinion 22A-PL-1981 | April 19, 2023 Page 8 of 12 the value of the applicant’s resources. Bookwalter does not identify any factual
error in the Commission’s decision that affected the outcome of the case.
Rather, Bookwalter’s case before the Commission and on judicial review rested
on his argument that the Statute was unconstitutional, which the Commission
has never conceded. The trial court correctly dismissed Bookwalter’s AOPA
claim.
II. Mootness [15] Bookwalter argues that the public-importance exception to the mootness
doctrine renders his appeal justiciable, while the State argues that he has failed
to establish justiciability. A case is moot “when it is no longer live and the
parties lack a legally cognizable interest in the outcome or when no effective
relief can be rendered.” Liddle v. Clark, 107 N.E.3d 478, 481 (Ind. Ct. App.
2018) (citing Save Our Sch. v. Ft. Wayne Cmty. Schs., 951 N.E.2d 244 (Ind. Ct.
App. 2011), trans. denied), trans. denied. Specifically, a request for injunctive
relief is moot when no relief is possible or if the relief sought has already
occurred. See, e.g., Medley v. Lemmon, 994 N.E.2d 1177, 1183 (Ind. Ct. App.
2013) (request for injunctive relief regarding visitation restrictions became moot
when those restrictions expired), trans. denied.
[16] A court may not, in general, consider a request for declaratory judgment if the
case is moot or calls merely for an advisory opinion. City of Hammond v. Bd. of
Zoning App., 284 N.E.2d 119, 126 (Ind. Ct. App. 1972) (citing Rauh v. Fletcher
Sav. & Trust Co., 207 Ind. 638, 641, 194 N.E. 334, 336 (1935)). An opinion is
“advisory when it would not change or affect legal relations between the
Court of Appeals of Indiana | Opinion 22A-PL-1981 | April 19, 2023 Page 9 of 12 parties.” Saylor v. State, 81 N.E.3d 228, 232 (Ind. Ct. App. 2017), trans. denied.
By the time the Commission filed its motion to dismiss on May 11, 2022, the
May 3, 2022, primary election had already occurred, rendering any decision by
the court regarding the constitutionality of the Statute an impermissible
advisory opinion. Consequently, the matter had been rendered moot.
[17] That said, both sides acknowledge that Indiana courts recognize an exception
to the mootness doctrine for matters of “great public interest which [are] likely
to recur.” T.W. v. St. Vincent Hosp. & Health Care Ctr., Inc., 121 N.E.3d 1039,
1042 (Ind. 2019). The parties differ, however, on whether the additional
element of the issue evading review must also be present, with Bookwalter
arguing that it need not be established and the Commission arguing that it must
be. As Bookwalter points out, the Indiana Supreme Court’s most recent
pronouncements on the matter do not include “evading review” as a part of the
great-public-interest exception to mootness. See Eunjoo Seo v. State, 148 N.E.3d
952, 954 n.1 (Ind. 2020) (“But irrespective of mootness, this case presents a
novel, important issue of great public importance that will surely recur.”). We
need not address the question of whether this issue evades review, however, if
we conclude that Bookwalter has failed to establish either that the issues in this
case are of great public interest or likely to recur. We need only address
whether Bookwalter has carried his burden to establish that the issues in this
case are likely to recur. We conclude that he has not.
[18] Bookwalter argues that the issues in this case are certain to recur, perhaps with
himself. Bookwalter also argues that the issues in this case may affect many
Court of Appeals of Indiana | Opinion 22A-PL-1981 | April 19, 2023 Page 10 of 12 other potential candidates, i.e., persons who change party allegiance, a situation
of which Bookwalter argues the Statute makes no allowance. Bookwalter notes
that, as most Hoosiers do not vote in primaries, would-be candidates could be
surprised to find themselves ineligible to run for office pursuant to the Statute,
which would bar those who started voting in the primaries this year from
running for office as a Republican or Democrat in the next primary.
Bookwalter, however, does not establish that such things are likely to recur,
only arguing that they could recur. Bookwalter points to nothing in the record
tending to show that potential candidates are routinely denied appearances on
primary ballots by operation of the Statute or that such denials will recur.
Without more, given the bar on addressing constitutional issues unless
absolutely necessary, see, e.g., Snyder, 958 N.E.2d at 786, we conclude that
Bookwalter has failed to carry his burden to establish that the issues in this case
are likely to recur. Lacking that showing, Bookwalter has failed to establish
that the great-public-interest exception to the mootness doctrine applies. 2
[19] Moreover, we cannot ignore the fact that Bookwalter chose to wait over three
weeks to petition for judicial review following the Commission’s ruling. In fact,
Bookwalter’s petition was filed on the day of the statutory deadline for counties
to receive delivery of printed absentee ballots, followed five days later by the
statutory deadline for counties to begin mailing absentee ballots to eligible
2 Because of our disposition, we do not address Bookwalter’s various constitutional challenges, nor do we address the arguments in the brief filed by amicus curiae, former Indiana State Representative Curt Nisly, which includes challenges to the Statute pursuant to Article 1, section 23, and Article 4, section 7, of the Indiana Constitution. (Amicus Br. 5, 8).
Court of Appeals of Indiana | Opinion 22A-PL-1981 | April 19, 2023 Page 11 of 12 voters. After these statutory deadlines passed, any ruling the trial court might
have made in Bookwalter’s favor would have amounted to nothing more than
closing the barn door after the horse had left the barn. Under the circumstances
of this case, with its admittedly compressed timeline, Bookwalter’s delay in
filing effectively eliminated any chance he had to keep his case “live.”
Bookwalter could have petitioned for judicial review the day after the
Commission’s ruling, or soon thereafter, but chose to wait twenty-four days,
until the very day absentee ballots were required by law to be delivered to
counties. We agree with the trial court that Bookwalter effectively acceded to
the preparation and distribution of absentee ballots without his name on them,
after which it was too late.
[20] The judgment of the trial court is affirmed.
May, J., and Mathias, J., concur.
Court of Appeals of Indiana | Opinion 22A-PL-1981 | April 19, 2023 Page 12 of 12