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03/01/88 STATE INDIANA v. SUPERIOR COURT MARION

Filed: March 1, 1988.

STATE OF INDIANA, ON THE RELATION OF THE STATE ELECTION BOARD, RELATOR,
v.
THE SUPERIOR COURT OF MARION COUNTY, CIVIL DIVISION, ROOM NO. 7, AND THE HONORABLE GERALD S. ZORE, JUDGE THEREOF, RESPONDENTS



On Petition for Writ of Prohibition and Writ of Mandamus

Shepard, C.j., with Pivarnik and Dickson, JJ., Givan, J.; DeBruler, J., is not participating.

Author: Shepard; Dickson

Shepard, C.J., and Dickson, J.

It is important to emphasize that the question before the Court is not whether Evan Bayh meets the constitutional residency requirement for the office of Governor. That is a question for another day, a question all too likely to return to this Court for a final determination. In effect, the current proceedings are but a way to define the path by which the final question will work its way back to this Court.

The State Election Board seeks a writ prohibiting the Marion Superior Court from proceeding further in the action for declaratory judgment filed there by Evan Bayh. Though we have some reservations about the impact of today's decision on the state's administrative law, the necessity that this Court come to a Conclusion about the procedure to be used in determining Mr. Bayh's eligibility for the office of Governor leads us to join in denying the relief requested by the Board. In so doing, we join in holding that under some circumstances a declaratory judgment is an available alternative to exhaustion of administrative remedies and judicial review.

We also conclude that a candidate's eligibility for placement on the ballot is a question which the statutes direct should customarily be decided by the Board. The Indiana Code requires that such questions be resolved by a week from Friday when the Secretary of State is directed under the statutes to certify to the county clerks the names of those who should be on the ballot. We have substantial doubt that a trial court can bring to a final judgment the question presented to it within that time frame and thus believe it is appropriate to let the Board's processes go forward. Hence, we have joined in prohibiting the Marion Superior Court from entering injunctions against the Board without further proceedings in this Court.

Even a decision by the Board favorable to Mr. Bayh's candidacy, however, cannot "bring to rest" the constitutional question of his eligibility for the office. Declaratory judgment is an excellent vehicle to bring about a final decision on that question. Both Evan Bayh and the people of Indiana have an interest in an early and authoritative answer to that constitutional question.

Whether the question of Evan Bayh's eligibility under the Constitution returns to this Court as an appeal from an administrative determination or as an appeal from a declaratory judgment, all deliberate speed will be required. We wish that a majority of this Court could be mustered for a more orderly path back here for a final resolution. As a Court functioning with only four members, today's order seems to us the best available.

RANDALL T. SHEPARD, Chief Justice of Indiana

Order

COMES NOW Relator, the State Election Board, by counsel David F. McNamar and Michael R. Franceschini, and comes also the Respondent, the Honorable Gerald S. Zore, Judge of Marion Superior Court, Civil Division, Room No. 7, by counsel Maureen E. Gaddy, and comes also Evan Bayh, by counsel, John D. Krahulik, John P. Price, Robin L. Babbitt and Paul J. Knapp, and present arguments in the above-captioned original action.

After consideration of said arguments this Court now denies Relator's "Petition for Writ of Prohibition and Writ of Mandamus" as prayed. The Respondent is, however, prohibited from enjoining the administrative proceeding of the State Election Board without further order of this Court.

The Clerk is directed to send a copy of this order to Attorneys David F. McNamar and Michael R. Franceschini; Attorney Maureen E. Gaddy; and Attorneys Jon D. Krahulik, John ...


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