Steve Webb v. Ronald "Ron" Ellis (mem. dec.)

Citation: Not availableDocket: 10A01-1604-MI-822

Court: Indiana Court of Appeals; January 22, 2018; Indiana; State Appellate Court

Original Court Document: View Document

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The memorandum decision, filed January 23, 2018, addresses the appeal by Steve Webb regarding the certification of election results for the Jeffersonville City Council, where he finished fifth among six candidates vying for three at-large seats. After a recount was initiated by Webb, a recount commission declared Joshua Rodriquez as the third-place finisher and certified the election results. Rodriquez subsequently appealed the commission's certification, leading the trial court to reverse the certification, appoint a second commission, and order a new recount.

Webb's appeal raises three issues, but Rodriquez filed a motion to dismiss, questioning whether Webb's appeal stemmed from a final judgment. The court concluded that the order reversing the commission's certification was not a final, appealable order, and Webb had not obtained certification for a discretionary interlocutory appeal. Consequently, the court dismissed Webb's appeal.

The election, held on November 3, 2015, involved a total of six candidates. The results indicated that Rodriquez received 5,090 votes, Ellis 5,076, and Webb 5,072, with almost 900 absentee ballots improperly printed and less than 300 affecting Jeffersonville’s election. The Clark County Election Board decided to remake the unreadable ballots, which were improperly labeled, lacking the required serial numbers. Webb’s timely petition for recount led to the appointment of a recount commission, which subsequently determined that the remade ballots would not be counted, using only the original ballots to ascertain voter intent.

Following the recount, a hearing was held on December 21, allowing parties to argue over challenged ballots and recount issues. The recount commission privately calculated the votes and announced Rodriquez as third-place finisher. Rodriquez requested certification of the results, which Webb opposed, citing Indiana’s Open Door law and demanding public vote calculations. The commission publicly recounted, resulting in Webb finishing third, Rodriquez fourth, and Ron Ellis fifth, with John Perkins not certifying the results. Rodriquez appealed the certification to the trial court, which scheduled a hearing for February 11, 2016. Prior to this, Rodriquez sent interrogatories to Webb, who objected, leading to his motion in limine to exclude new evidence on appeal, which the court denied. During the hearing, Rodriquez presented witnesses, including counters who testified about their lack of training and confusion over tally sheets, while expressing disagreement with the commission's findings but understanding their rationale.

On March 24, 2016, the trial court issued findings that Rodriquez provided evidence of procedural defects by the recount commission which may have affected the outcome. The court granted Rodriquez’s appeal but did not specify a remedy, scheduling a further hearing for April 11. On April 13, Webb filed a Notice of Appeal and several motions, including a request to stay proceedings. A hearing on April 15 resulted in the court denying Webb's motions to stay and for interlocutory appeal, granting Rodriquez’s motion to be seated until the recount was completed, and approving Webb's motion for a change of venue and for findings of fact.

Webb's objections related to the recount process, including a second recount commission's appointment and a motion for a hearing regarding procedure, were acknowledged by the court but left for the assigned judge to address. Webb subsequently filed an appeal. The Indiana Supreme Court and Court of Appeals have limited appellate jurisdiction, generally only over final judgments, which are defined as judgments that conclude a case and leave no outstanding issues for resolution. In this case, Webb's notice of appeal claims to address a final judgment; however, the trial court determined that its orders were not final, as the issues stemming from Webb's recount petition remained unresolved. The court's orders included granting Rodriquez's appeal, which identified procedural defects in the recount commission's actions, and denying Webb's appeal regarding certain absentee ballots. The trial court concluded that since the recount process was incomplete and issues persisted among the parties, Webb's appeal was effectively a nullity, resembling an interlocutory appeal. The appellate court agreed with this assessment, referencing the case of White v. Indiana Democratic Party, which emphasizes that an appeal is not valid unless a final judgment has been entered.

A recount has not yet been conducted following the trial court's proper procedures, and the trial court's grant of the Motion to Enforce is not a final judgment, as it does not conclude the case. The trial court's rulings do not foreclose any rights; instead, they suspend the parties' rights until the second recount commission makes a final determination. Consequently, there is no final, appealable judgment in this matter.

Since the trial court's orders are interlocutory, Webb's only option for appellate review was to file for a discretionary interlocutory appeal under Indiana Appellate Rule 14(B), which requires trial court certification. The trial court denied certification for two interlocutory appeals requested by Webb, which is within its discretion. Without the necessary certification, Webb cannot pursue an appeal under the specified rule.

The issue at hand being non-final and lacking jurisdiction for an appeal, the appropriate action, as emphasized by the state supreme court, is to dismiss the appeal. The court therefore dismisses the appeal and remands the case to the trial court for further proceedings.