Appeal planned on judge’s order to remove secretary of state

Marion Circuit Judge Lou Rosenberg ruled Wednesday that Indiana Secretary of State Charlie White was ineligible to be a candidate for the state office in the November 2010 election because he allegedly committed voter fraud. Now, an appeal is being planned and many believe the case is on a fast-track to the state’s highest court.

Indiana Democrats called for an investigation two months before the 2010 general election after discovering White, a Republican, voted in the May 2010 primary while registered to vote at his ex-wife's house in Fishers.

In June 2011, the three-member Indiana Recount Commission voted unanimously to let White keep his job. The state Democratic Party appealed that decision in court and Rosenberg found the record shows White wasn’t residing at the home he listed for voting as is statutorily required.

“The fact that Mr. White knowingly registered in the wrong precinct is sufficient to render him ineligible for the office of Secretary of State,” Rosenberg wrote, remanding the case to the Indiana Recount Commission.

Rosenberg ordered the commission to remove White from office and appoint Democrat Vop Osili, who was the second-highest vote getter in 2010. State statute at the time of the election puts him in the position, although Osili has since been elected to the City of Indianapolis and Marion County City-County Council and expects to take office Jan. 1.

Recount Commission spokesman AJ Feeney-Ruiz said White remains secretary of state for the time being and that the commission wouldn’t be able to take up Rosenberg's ruling before late next week because of the holiday, uncertainty about the commission’s membership and 48-hour notice requirements.

"The secretary of state is still the secretary of state and will continue to do his work as secretary of state as this process plays out," Feeney-Ruiz said.

White’s counsel, Jonathan Sturgill, filed an emergency motion to stay on Friday, and Rosenberg has stayed the removal order until a hearing Jan 3.

The Office of the Indiana Attorney General represents the Recount Commission, and spokesman Bryan Corbin said the state agency will seek appellate review.

“One obligation of our office is to represent state government boards such as the Indiana Recount Commission in lawsuits, and when a board’s unanimous administrative decision is overturned by a court, the order should be reviewed by a higher court,” he said. “We will seek a stay of the court’s ruling and are in communication with our client, the Recount Commission, to discuss the process of an appeal.”

Indianapolis attorney Tom Wheeler, who temporarily chaired the Recount Commission after White was statutorily precluded from that role, expects the judge’s ruling will be immediately appealed to the Indiana Supreme Court.

Wheeler isn’t sure whether he retains the Recount Commission chair and has asked the AG for a formal legal opinion on his status. Indiana Republican Party Chair Eric Holcomb appointed Wheeler as chairman under Indiana Code 3-12-10-2.1(e) temporarily, but the commission issued a final determination in the White matter on June 28 and it is unclear whether Wheeler remains chairman or the secretary of state has resumed that position.

This civil action is separate from the ongoing criminal case in Hamilton County, where a grand jury indicted White on voter fraud and other charges in March. White had been trying to postpone the civil recount matter until after the criminal case was completed, but those efforts failed. Most recently, Hamilton Superior Judge Steven Nation refused a motion to dismiss the criminal case and it is scheduled to go to trial Jan. 30. Former Marion County Prosecutor Carl Brizzi is representing White on the criminal charges and has said publicly that the civil office-holding case would not impact the criminal voter fraud case.

Indianapolis attorney Bill Groth with Fillenwarth Dennerline Groth & Towe, representing the Democrat Party in the Recount Commission matter, said the next step is not known and it is premature to make any predictions.

He referred to the Indiana General Assembly’s change in state law in early 2011, which revised statute to give the governor appointment power to choose a secretary of state successor in this type of removal situation. The change came as a result of the White matter, and legislators made the move to apply to future situations after some concerns arose about making the revision retroactive to apply to the White-Osili matter. But a question could arise about which version of the statute applies now, Groth said.

“We’re really in unchartered territory here. I certainly don't want to prejudge the outcome of the criminal case, but were a guilty verdict to result, there could be a colossal legal battle over whether Vop Osili or a gubernatorial appointee would be entitled to assume the vacant office. In that eventuality and also assuming the Supreme Court did not reverse, we will be vigorously contending Osili has the superior claim to the office,” Groth added.