ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
PATRICK R. RAGAINS JAMES W. WILSON
Smith & Ragains Bingham, Farrer and Wilson, P.C.
Anderson, Indiana Elwood, Indiana
ATTORNEY FOR AMICUS CURIAE:
JOHN W. LONGNAKER III
COURT OF APPEALS OF INDIANA
FRANKLIN E. PATTERSON, )
vs. ) No. 48A05-0306-CV-267
DANIEL W. DYKES, )
APPEAL FROM THE MADISON SUPERIOR COURT I
The Honorable Dennis D. Carroll, Judge
Cause No. 48D01-0212-MI-1060
March 12, 2004
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Appellant-Defendant, Franklin Patterson (Patterson), appeals the trial courts grant of summary judgment in
favor of Appellee-Plaintiff, Daniel Dykes (Dykes).
Patterson raises one issue on appeal, which we restate as follows: whether
the trial court erred in granting summary judgment in favor of Dykes and
Based on our determination of the issue raised by Patterson, we must also
determine whether the trial court erred in ordering the incumbent councilman, Dykes, to
hold over until the next general election of the council seat for Madison
County Council, District 2.
FACTS AND PROCEDURAL HISTORY
Dykes and Patterson ran as candidates against one another in the general election
of 2002 for a seat on the Madison County Council for District 2.
Dykes, as the incumbent councilman, sought re-election as the Republican Party candidate.
Patterson opposed Dykes as the Democratic Party candidate. Upon declaring their
candidacy for office, each candidate was required to file a Declaration of Candidacy
for Primary Nomination in which each certified that he met the specific requirements
for the office of Madison County councilman. The declaration form includes the
statement, I am not ineligible to be a candidate due to a criminal
conviction that would prohibit me from serving in this office. (Appellants App.
p. 28). At the November 5, 2002 general election, Patterson received the
majority of votes--5047 votes to 4598 votes for Dykes. Patterson was to
begin his term as councilman on January 1, 2003.
However, on December 12, 2002, Dykes filed his Complaint for Declaratory Judgment and
Request for Permanent Injunction (Complaint) in the Madison County Court. In his
Complaint, Dykes alleged that Patterson was ineligible to hold office because he had
a prior felony conviction.
See footnote Dykes further requested the trial court to declare
that, as the incumbent councilman for Madison County Council, District 2, Dykes should
continue to serve until a successor is both elected and qualified, and that
the Madison County Democratic Party be permanently enjoined from attempting to fill the
Council seat because, as long as he is serving, no vacancy exists.
Thereafter, on December 20, 2002, Patterson filed his Petition for Clemency with the
Indiana Parole Board, seeking a Pardon from Governor Frank OBannon. On December
27, 2002, subsequent to a joint attorneys conference a few days before, the
trial court ordered Dykes, as the incumbent of Madison County Council, District 2,
to hold over in his council seat without prejudice to the rights of
any and all parties in interest. (Appellants App. p. 15).
On February 4, 2003, Dykes filed his Motion for Summary Judgment and supporting
documents. On March 5, 2003, Patterson filed his response in opposition to
Dykes Motion for Summary Judgment. On March 17, 2003, the trial court
conducted a hearing on the motion and issued its Findings of Fact, Conclusions
of Law, and Order on April 9, 2003, in which the trial court
concluded as follows:
1. That there are no material factual issues and that there is
no reason why Summary Judgment should not be entered at this time.
2. That pursuant to Article 15, Section 3 of the Indiana Constitution,
the last duly elected official, [Dykes], is to hold over until a successor
is duly elected and qualified.
3. That the term of [Dykes] initially began on January 1, 1999.
4. That pursuant to [I.C. § 3-8-1-5(b)] on November 5, 2002, [Patterson]
was not eligible to be a candidate or to hold office in the
State of Indiana.
5. That pursuant to [I.C. § 3-10-12-13 (sic) and I.C. § 36-2-3-3],
a County Councilman shall be elected at a general election and every four
(4) years thereafter.
6. That the term of a hold over incumbent is four (4)
additional years and until the next general election for said office.
7. That pursuant to [I.C. § 3-12-8-17] there is no statutory authority
for the [c]ourt to order a special election in the present situation.
8. That a future possible pardon of Patterson will not make him
eligible to hold office retroactively to January 1, 2003.
(Appellants App. p. 60).
DISCUSSION AND DECISION
Patterson now appeals the trial courts grant of summary judgment in Dykes favor.
On August 14, 2003, subsequent to Pattersons Notice of Appeal, Governor Frank
OBannon granted Pattersons Petition for Clemency. Additional facts will be supplied as
I. Standard of Review
In reviewing the propriety of a trial courts ruling of summary judgment, we
apply the same standard as the trial court. Schoknecht v. Hasemeier, 735
N.E.2d 299, 301 (Ind. Ct. App. 2000). We do not reweigh the
evidence designated by the parties. Id. Instead, we liberally construe the
evidence in the light most favorable to the non-moving party. Id.
Summary judgment is appropriate only if the pleadings and evidence show: 1)
the absence of a genuine issue of material fact, and 2) the moving
party is entitled to judgment as a matter of law. Id. at
301-02. A trial courts grant of summary judgment is clothed with a
presumption of validity. Id.
II. Effect of Pardon
A. Pending Petition for Clemency
Patterson argues that the trial court erred in granting summary judgment in favor
of Dykes. Specifically, Patterson contends that the trial court erred in concluding
that his Petition for Clemency, pending at the time of the trial courts
order, would have no effect on the final determination as to who would
be seated as the Madison County District 2 councilman. (Appellants Br. p.
On the other hand, Dykes contends that the trial courts grant of summary
judgment in his favor should be affirmed. In particular, Dykes argues that
the fact Patterson had a Petition for Clemency pending at the time the
trial court granted Dykes Motion for Summary Judgment did not present a genuine
issue of material fact. We agree with Dykes.
At the outset, we note that we have not previously had the opportunity
to consider the effect of a Pardon on the eligibility of a candidate
for public office, when the Pardon is granted subsequent to the election.
The instant appeal is taken from the trial courts entry of summary judgment
in favor of Dykes on April 9, 2003. At the time of
the trial courts order, Patterson had a Petition for Clemency pending, as it
was not granted until August of 2003. Consequently, the issue before us
is whether the pendency of Pattersons Petition for Clemency raised a genuine issue
of material fact that makes the trial courts grant of summary judgment inappropriate.
As Patterson correctly sets forth in his Appellants Brief, this court is not
permitted to search the record for, or make a decision based upon, materials
that were not specifically designated to the trial court. McClain v. Chem-Lube
Corp., 759 N.E.2d 1096, 1101 (Ind. Ct. App. 2001); (Appellants Br. p. 7).
In the same vein, the resolution of his Petition for Clemency was
not before the trial court at the time of summary judgment. Instead,
as Dykes argues, the possible effect of a Pardon on the case, if
granted, does not amount to a genuine issue of material fact, because it
is not a fact; rather, it is speculation. See Briggs v. Finley,
631 N.E.2d 959, 964 (Ind. Ct. App. 1994)
(Free-flowing speculation cannot be construed as a fact which sheds doubt on the
of other facts; opinions expressing a mere possibility with regard to a hypothetical
situation are insufficient to establish a genuine issue of material fact). As
a result, we limit our review to materials actually designated to the trial
court at the time it considered Dykes Motion for Summary Judgment.
Relevant portions of Indiana Code section 3-8-1-5(b) provide: [a] person is disqualified
from holding or being a candidate for an elected office if the person
has been convicted of a felony. The record shows that, in 1974,
Patterson was convicted of theft, a Class D felony. Thus, pursuant to
I.C. § 3-8-1-5(b), he was disqualified from being a candidate for the Madison
County Council seat. Nevertheless, Patterson ran for the office and won by
a majority of votes. However, as a convicted felon, he is disqualified
from holding the office. Under this review, we must affirm the trial
courts grant of summary judgment in favor of Dykes, as Patterson raised no
genuine issue of material fact to prevent the trial courts grant of summary
judgment as a matter of law. See Schoknecht, 735 N.E.2d at 301.
B. Subsequent Grant of Pardon
Nonetheless, Patterson argues that the Pardon he received from the late Governor Frank
OBannon on August 14, 2003, retroactively removes his felony conviction, thereby restoring his
eligibility and victory as a candidate for the Madison County Council seat for
District 2. In support of his contention, Patterson relies on Kelley v.
State, 204 Ind. 612, 185 N.E. 453 (Ind. 1933), which adopted the rule
set forth by the U.S. Supreme Court in Ex Parte Garland, 71 U.S.
333, 380-81 (1866), as follows:
A pardon reaches both the punishment prescribed for the offence and the guilt
of the offender; and when the pardon is full, it releases the punishment
and blots out of existence the guilt, so that in the eye of
the law the offender is as innocent as if he had never committed
the offence. If granted before conviction, it prevents any of the penalties
and disabilities consequent upon conviction, from attaching; if granted after conviction, it removes
the penalties and disabilities, and restores him to all his civil rights; it
makes him, as it were, a new man, and gives him a new
credit and capacity.
Kelley, 185 N.E. at 458. However, we find Pattersons argument misplaced.
II. Holdover Incumbent
Here, we must focus on the fact that, at the time Patterson was
a candidate for office and at the time he was elected to that
office, he was ineligible, pursuant to I.C. § 3-8-1-5(b), both to be a
candidate and to hold the office to which he was elected, due to
his felony conviction. On August 14, 2003, the late Governor OBannon granted
Pattersons Petition for Clemency, thereby obliterating his 1974 felony conviction. Clearly, the
effect of a Pardon is retroactive; thus, from August 14, 2003, forward, Patterson
is eligible to run for an elected office, because he no longer has
a felony conviction in his criminal history. However, because Patterson was a
convicted felon at the time of his candidacy and election to the Madison
County District 2 Council seat, we affirm the trial courts conclusions that:
(1) pursuant to I.C. § 3-8-1-5(b), on November 5, 2002, Patterson was not
eligible to be a candidate or to hold office in the State of
Indiana; and (2) the grant of a Pardon subsequent to the trial courts
order would not make Patterson eligible to hold office retroactively to January 1,
2003. (Appellants App. p. 60).
Furthermore, as part of our consideration, we note that allowing a Pardon obtained
after an election to qualify an officeholder-elect retroactively would, for all intents and
purposes, be a judicial sanction for otherwise ineligible persons to sidestep our states
statutory requirements for political candidacy. We hold that such an action would
be a manifest violation of public policy. The idea that individuals contravene
public policy when they violate the law is basic to our social and
political order. McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390,
393 (Ind. 1988). In such instances, the penal code serves as a
statement of public policy; thus, when the law is violated, so is the
public policy. Id.
Accordingly, in light of our consideration, we find that the trial court properly
granted summary judgment in favor of Dykes and against Patterson with regard to
the effect of a Pardon on Pattersons eligibility to serve as councilman for
Madison County Counsel, District 2, pursuant to the November 5, 2002, election.
Our determination above requires us to determine further whether the trial court erred
in ordering the incumbent Dykes to hold over until the next general election
of the council seat for Madison County Council, District 2. Dykes agrees
with the trial court that he is the proper party to hold over
in the Madison County Council seat, District 2, pursuant to Article 15, Section
3 of the Indiana Constitution, which provides as follows:
Whenever it is provided in this Constitution, or in any law which may
be hereafter passed, that any officer, other than a member of the General
Assembly, shall hold his office for any given term, the same shall be
construed to mean, that such officer shall hold his office for such term,
and until his successor shall have been elected and qualified.
The term referred to in this constitutional provision is known as the contingent
and defeasible term, which exists solely to avoid a vacancy in a public
office. Swank v. Tyndall, 226 Ind. 204, 211-12, 78 N.E.2d 535, 538
(Ind. 1948). Our supreme court explained this provision as follows:
When the elective term ends and no qualified person has been elected and
qualified to take over the duties of the office, the person holding the
office at the end of the elective term has a right and duty,
commanded by Art. 15, § 3, [ ] to hold the office and
discharge its duties until his successor shall have been elected and qualified.
This service is not a part of his elective term, but is a
constitutional term granted to avoid a vacancyand to assure an ever-continuing government in
any and every emergency.
Id. 226 Ind. at 212, 78 N.E.2d at 538.
In the instant case, Patterson and Dykes were the only candidates for the
District 2 council seat during the November 5, 2002, general election in which
Patterson received the majority of votes. Upon determining that Patterson was disqualified
from holding the office to which he was elected, the trial court ordered
Dykes, as the incumbent councilman, to hold over in his office an additional
four years until the next general election for that office, pursuant to Article
15, section 3 of the Indiana constitution and I.C. § 3-10-2-13.
See footnote We
find no error in the trial courts conclusion of law ordering Dykes to
hold over in the Madison County Council, District 2 council seat until the
next general election for that office.
Based on the foregoing, we conclude that the trial court did not err
in granting summary judgment in favor of Dykes and against Patterson. Further,
the trial court did not err in ordering Dykes to hold over as
Madison County councilman for District 2 until the next general election for that
KIRSCH, C.J., and ROBB, J., concur.
On February 10, 2004, we held oral argument in this matter at
Wabash College in Crawfordsville, Indiana. We would like to thank the parties
for their presentations.
Footnote: Pattersons 1974 felony conviction for theft is not in dispute.
Footnote: The Madison County Republic Party (MCRP) filed an amicus curiae brief
in this case. The interests of the MCRP are aligned substantively with
those of Dykes. It argues that the trial courts ruling should be
upheld, particularly in the interest of resolving future elections involving disqualified candidates.
Footnote: We note that the trial court erroneously cited to a nonexistent statute
I.C. § 3-10-12-13 as the statute designating the term of a county council
member as four years; the statute is actually I.C. § 3-10-2-13.