Opinion
No. 49S02-1105-MI-291.
May 20, 2011.
Court of Appeals; Cause No. 49A02-1104-MI-350.
Marion Circuit Court; Cause No. 49C01-1012-MI-055881.
PUBLISHED ORDER GRANTING TRANSFER AND DISMISSING APPEAL
After the election of Charlie White as Indiana Secretary of State, the Indiana Democratic Party, by its Chairman Daniel J. Parker, filed a verified petition for election contest with the Indiana Recount Commission ("Commission"). The Commission dismissed Parker's petition for election contest. When the Indiana Democratic Party filed a petition for judicial review, the Marion Circuit Court ("trial court") on April 7, 2011, reversed and remanded to the Commission for further proceedings consistent with the trial court's order.
On May 2, 2011, the trial court issued a second order, which directed the Commission to take final action on the election contest by July 6, 2011, denied White's motion to stay the proceedings pending resolution of his criminal case or his appeal, and ordered the Commission to issue a case management order within seven days. In response, the Commission has scheduled an evidentiary hearing for the election contest for June 21, 2011, and has set for itself a June 30, 2011 deadline for deciding the election contest.
White, in his individual capacity, and the Commission have filed notices of appeal to the Court of Appeals.
Appellee, the Indiana Democratic Party, filed its "Appellee's Verified Motion to Dismiss Appeal or Alternatively, Suspend Consideration of this Appeal Until Disposition is Made of All Issues Presented By This Contest," arguing, among other things, that this appeal should be dismissed because the trial court has not entered a final appealable judgment. White has filed a "Response in Opposition to Appellee's Motion to Dismiss." The Commission has not filed a response to the Motion to Dismiss. Additionally, White has filed his "Motion for Stay Pending Resolution of Criminal Proceedings, or in the Alternative, Pending Appeal."
Additionally, the Commission has filed the "Indiana Recount Commission's Emergency Verified Motion to Transfer Jurisdiction of Appeal Before Consideration by the Court of Appeals," pursuant to Appe1-1ate Rule 56(A), along with a request to expedite this appeal. In extraordinary cases, the Supreme Court may accept jurisdiction upon a showing that an appeal "involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination." App. R. 56(A).
The Court has met in conference and discussed these pending motions. Having considered the request for emergency transfer, and being duly advised, this Court GRANTS the Motion to Transfer and assumes jurisdiction over this appeal. The Clerk is directed to assign this appeal a Supreme Court cause number and transfer the chronological case summary from the current Court of Appeals cause number to the new cause number.
The Court DENIES White's Motion for Stay. The Court GRANTS the Indiana Democratic Party's Motion to Dismiss and DISMISSES this appeal, concluding that the trial court has not entered a final judgment. Ind. Appellate Rule 2(H); Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003) ("a final judgment `disposes of all issues as to all parties thereby ending the particular case'").
To the extent the trial court might certify its orders of April 7 and May 2, 2011, for discretionary interlocutory appeal in the future pursuant to Appellate Rule 14(B)(1), this Court retains jurisdiction to consider whether to permit such an appeal under Appellate Rule 14(B)(2). However, this Court would be disinclined to accept such a discretionary interlocutory appeal in light of the benefits to be obtained by prompt resolution of all of the matters now pending.
The Clerk is directed to send a copy of this order to the Hon. Margret G. Robb, Chief Judge, Indiana Court of Appeals; to the Hon. Louis F. Rosenberg, Judge, Marion Circuit Court; to Steve Lancaster, Court of Appeals Administrator; to Danielle Sheff, Deputy Administrator, Indiana Court of Appeals; and to counsel of record. The Clerk of this Court is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish this order in the bound volumes of this Court's decisions.
All Justices concur.