Thomas DeCola v. Starke County Election Board

• Court: Indiana Court of Appeals
• Decided: May 12, 2020
• Docket: 20A-MI-709
• Status: Published

Opinion

FILED May 12 2020, 10:33 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

APPELLANT PRO SE ATTORNEY FOR APPELLEE Thomas DeCola Janette E. Surrisi North Judson, Indiana Wyland, Humphrey, Clevenger & Surrisi, LLP Plymouth, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thomas DeCola,1 May 12, 2020 Appellant-Plaintiff, Court of Appeals Case No. 20A-MI-709 v. Appeal from the Starke Circuit Court Starke County Election Board, The Honorable Michael S. Appellee-Defendant Bergerson, Special Judge Trial Court Cause No. 75C01-2002-MI-11

Vaidik, Judge.

[1] In January and February of this year, Thomas DeCola declared his candidacy

for three offices in the Starke County primary election that was originally

1 In the caption of his complaint and the caption of his appellate brief, the appellant indicated that his last name is “De Cola.” In the body of his complaint and the body of his brief, however, he refers to himself as “DeCola.” We adopt the latter spelling.

Court of Appeals of Indiana | Opinion 20A-MI-709 | May 12, 2020 Page 1 of 4 scheduled to be held on May 5: Starke County Treasurer, Railroad Township

Republican Precinct Committeeman, and Republican State Convention

Delegate-District 17. On February 7, Starke County Republican Party

Chairman Dave Kesvormas filed challenges to DeCola’s candidacy for all three

offices, claiming that DeCola had engaged in “gross misconduct” at a political

conference and that he “does not meet the qualification and prerequisite set

forth in the rules of the Indiana GOP.” Appellant’s App. Vol. II pp. 14, 15. The

Starke County Election Board held a hearing on the matter on February 26,

sustained the challenges, and ruled that DeCola “will not appear on the primary

ballot in Starke County in 2020.” Id. at 126.

[2] On February 28, DeCola appealed the Election Board’s action to the Starke

Circuit Court, asking the court to “order the Board to reinstate his

candidacies[.]” Id. at 7. A hearing was scheduled for March 20. That day,

Governor Holcomb issued an executive order postponing the primary election

until June 2 because of the COVID-19 pandemic. See Executive Order 20-07,

https://www.in.gov/gov/files/EO_20-07_Rescheduling_Primary.pdf

[https://perma.cc/7Z6L-VV2A] During the hearing, however, the Election

Board’s attorney indicated that some absentee ballots had already been sent to

voters. After the hearing, the court issued an order affirming the Election

Board’s decision.

[3] DeCola then appealed the trial court’s decision to this Court. The matter was

transmitted to this panel on May 7. DeCola asks us to order the Election Board

to “reinstate” his three candidacies “on the June 2, 2020 Starke County

Court of Appeals of Indiana | Opinion 20A-MI-709 | May 12, 2020 Page 2 of 4 Republican Primary and absentee ballots.” Appellant’s Br. p. 17. The problem

with that requested relief is that only three weeks remain before the primary—a

primary that will be conducted largely via absentee ballot because of the

COVID-19 pandemic. Even under optimal circumstances, it is highly unlikely

we would order a county election board to start from scratch on absentee ballots

three weeks before an election. We certainly will not do so with the pandemic

ongoing, with Indiana’s reopening effort still in its early stages, and with a

growing number of absentee ballots having already been sent to voters. As the

Election Board states, “To redo the absentee ballot in this environment would

be untenable.” Appellee’s Br. p. 18. DeCola makes no argument to the

contrary.

[4] As we have said, “A case should be dismissed as moot when no effective relief

can be rendered to the parties before the court.” J.B. v. State, 55 N.E.3d 831, 833

(Ind. Ct. App. 2016). Because we could not grant DeCola the relief he seeks

even if we were to agree with him that the Election Board erred by keeping him

off the ballot, we dismiss his appeal. We express no opinion on the merits of the

Election Board’s decision.2

[5] Dismissed.

2 DeCola has filed a motion to strike part of the Election Board’s brief and a “Motion to Change the Security Code for De Cola’s Filings.” In separate orders issued today, we deny the former motion and grant the latter.

Court of Appeals of Indiana | Opinion 20A-MI-709 | May 12, 2020 Page 3 of 4 May, J., and Robb, J., concur.

Court of Appeals of Indiana | Opinion 20A-MI-709 | May 12, 2020 Page 4 of 4