BOWES et al v. INDIANA SECRETARY OF STATE, et al

Filing 36

Plaintiffs' Amended 29 Motion for Preliminary Injunction is DENIED. ORDER denying as moot 5 Motion for Preliminary Injunction and 7 Motion for Emergency Hearing. Signed by Judge Richard L. Young on 11/19/2014. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

GREGORY BOWES and CHRISTOPHER
K. STARKEY,
Plaintiffs,
vs.
INDIANA SECRETARY OF STATE, in
her official capacity,
INDIVIDUAL MEMBERS OF THE
INDIANA ELECTION COMMISSION, in
their official capacities; and
GOVERNOR OF THE STATE OF
INDIANA, in his official capacity,
Defendants.

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1:14-cv-1322-RLY-DML

ENTRY ON PLAINTIFFS’ AMENDED MOTION FOR PRELIMINARY
INJUNCTION
On Thursday, October 30, 2014, the court held a hearing on the Amended Motion
for Preliminary Injunction filed by the plaintiffs herein, Gregory Bowes and Christopher
Starkey. At the conclusion of the hearing, the court issued a bench ruling DENYING the
motion because, inter alia, the motion was untimely. Consistent with that ruling, the
court issues the following written order.
I.

Factual and Procedural Background
The procedural history of this case is important to the court’s disposition. The

court therefore includes a detailed procedural history into the factual background section
of this Entry.
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On November 1, 2012, Common Cause Indiana, sought a declaration that Indiana
Code § 33-33-49-13(b), Indiana’s method of electing judges to the office of the Marion
Superior Court, violates its members’ First Amendment right to cast a meaningful vote,
and an order permanently enjoining its enforcement. See Common Cause v. Indiana
Secretary of State, 1:12-cv-1603-RLY-DML. Briefly, that challenged Statute provides
that a political party 1 – i.e., the Republican or Democratic Parties – may nominate not
more than half of the candidates eligible to sit on the Marion Superior Court through the
primary election process. Ind. Code § 33-33-49-13(b). The names of the party
candidates nominated and certified to the Marion County Election Board are then placed
on the general election ballot. Ind. Code § 33-33-49-13(c). In the general election, the
candidates “run at large for the office of judge of the court and not as a candidate for
judge of a particular room or division of the court.” Ind. Code § 33-33-49-13(a).
The primary for the office of the Marion Superior Court was held on May 6, 2014.
According to the Official Indiana Primary Election Totals for Judge of the Superior
Court, 11 Democratic candidates, and 8 Republican candidates, ran for the office. (See
Defendants’ Hearing Ex. 1). Pursuant to the challenged Statute, eight Democratic and
eight Republican candidates qualified for the general election ballot vying for 16 open
positions on the court. Both of the plaintiffs in this action lost in the Democratic primary;

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Primary elections are held by parties whose candidates for Indiana Secretary of State receive
10% of the votes cast in the last general election. Ind. Code § 3-10-1-2. Only the Republican
and Democratic Parties meet this threshold.

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Mr. Starkey came in 11th with 5,698 votes, and Mr. Bowes came in 10th with 8,551
votes. (Id.).
Mr. Starkey was aware of the Common Cause lawsuit, and learned from counsel
that Common Cause did not intend to take any steps to ensure that a decision in its favor
would apply to the November 2014 general election. Mr. Starkey therefore filed, just
days before the May 6 Democratic primary election, a motion to intervene in Common
Cause for the purpose of requesting preliminary injunctive relief that required his
candidacy be placed on the general election ballot. On June 18, 2014, the Magistrate
Judge denied that motion for two reasons. First, she found Mr. Starkey’s motion was not
timely, as he should have known from the public docket that Common Cause had never
sought preliminary injunctive relief. Second, she found that Mr. Starkey should have
known no later than the pretrial conference scheduled on January 17, 2014, that this case
might not be resolved in sufficient time to affect the November 2014 election. “Any
hope [Mr. Starkey] may have harbored for Common Cause to change its litigation
strategy and seek preliminary injunctive relief was not a reasonable basis for delaying
seeking intervention.” (1:12-cv-1603-RLY-DML, Order Denying Motion to Intervene,
Filing No. 62 at 3). She further found that Mr. Starkey “lack[ed] an interest in the subject
matter of this litigation that will be impaired or impeded without his participation.” (Id.).
Specifically, she found that nothing prevented Mr. Starkey from filing his own challenge
to the constitutionality of the challenged Statute, “[b]ut he has no right at this late stage to
alter the course of this case. . . .” (Id.). Mr. Starkey timely filed an objection, and, along

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with Gregory Bowes, filed the present action on August 11, 2014. At that time, the case
was assigned to District Judge Sarah Evans Barker.
Plaintiffs’ Complaint in this action mirrors that filed by Common Cause in 1:12cv-1603-RLY-DML. On the same day the Complaint was filed, Plaintiff also filed a
motion for preliminary injunctive relief, requiring the State of Indiana to put Mr.
Starkey’s and Mr. Bowes’ candidacies on the November 2014 general election ballot, and
a motion for speedy hearing.
On August 14, 2014, Plaintiffs moved to have this case transferred to Chief Judge
Young. The Magistrate Judge thereafter issued an order setting a conference for
September 15, 2014, the purpose of which was to set a briefing schedule on Plaintiffs’
pending motion for preliminary injunction. (See Order Setting Status Conference, Filing
No. 16). On September 5, 2014, the Magistrate Judge vacated the conference, and on
September 8, 2014, the matter was reassigned to Chief Judge Young.
On September 19, 2014, Plaintiffs moved for a summary ruling on their motion for
preliminary injunction on grounds the Defendants had failed to respond. On October 2,
2014, the court denied that motion for three reasons, including, but not limited to, the fact
that ballots had already been printed or inputted into electronic voting machines, and
early voting was scheduled to begin on October 6, 2014. (See Entry on Plaintiffs’
Request for Summary Ruling, Filing No. 26).
On October 9, 2014, the court granted the Plaintiff’s motion for summary
judgment in Common Cause, and declared that Indiana Code § 33-33-49-13(b) is
unconstitutional. (See 1:12-cv-1603-RLY-DML, Entry on the Parties’ Cross Motions for
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Summary Judgment, Filing No. 70). Out of an abundance of caution so as not to disrupt
the upcoming election, the court stayed its decision pending appeal.
The following day, the Magistrate Judge held a status conference, at which time
she ordered Plaintiffs to “file a motion or other paper that addresses the October 9 ruling
in Common Cause” and to address “the propriety of and authority for any remedy they
seek as preliminary injunctive relief.” (Entry and Order from Status Conference, Filing
No. 28). Plaintiffs thereafter filed the present motion on October 15, 2014.
As of October 29, 2014, 9,780 absentee ballots have been cast by Marion County
voters for the November 2014 general election. (Defendants’ Hearing Ex. 1).
II.

Laches
“The defense of laches bars an action when the plaintiff’s delay in filing the claim

(1) is unreasonable and inexcusable, and (2) materially prejudices the defendant.” Smith
v. Caterpillar, Inc., 338 F.3d 730, 733 (7th Cir. 2003); Herman v. City of Chicago, 870
F.2d 400, 401 (7th Cir. 1989) (“Laches comes into play when an inexcusable delay
produces prejudice to the defendant.”); Knox v. Milwaukee Cnty. Bd of Elections
Comm’rs, 581 F.Supp. 399, 402 (E.D. Wis. 1984) (applying defense of laches to a
request for injunctive relief). In general, the decision to apply the doctrine of laches lies
on a sliding scale: “the longer the plaintiff delays in filing her claim, the less prejudice
the defendant must show in order to defend on laches.” Smith, 338 F.3d at 734. In the
election context, “this means that any claim against a state electoral procedure must be
expressed expeditiously.” Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990). This
is because, “[a]s time passes, the state’s interest in proceeding with the election increases
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in importance as resources are committed and irrevocable decisions are made.” Id. The
candidates’ claims to be considered serious contenders on the ballot “become less
credible by having slept on their rights.” Id.
In this case, Mr. Starkey sought to intervene in Common Cause on May 2, 2014,
18 months after that lawsuit was filed, 2 business days before the primary election, and 6
months before the general election. The Magistrate Judge correctly denied that motion.
The motion simply came too late, particularly in light of the fact that the relief Mr.
Starkey sought was to overturn the results of the primary election as a means to appear
on the general election ballot. (See 1:12-cv-1603-RLY-DML, Intervenor Complaint for
Declaratory and Injunctive Relief, Request for Relief, Filing No. 48 (seeking an “Order
that all primary candidates for judge of the Marion Superior Court who finish in the top
sixteen in the primary set for 6 May 2014 for either party be placed on the general
election ballot for 4 November 2014, including early voting”). Plaintiffs, practicing
lawyers in the Indianapolis area, were aware of this case and easily could have filed the
present lawsuit long before they did. 2 Their delay in filing the present lawsuit is
unreasonable and inexcusable.
Further, the court’s ruling in Common Cause is stayed pending a ruling by the
Seventh Circuit Court of Appeals. The stay means, as a practical matter, that the status
quo – i.e., the challenged Statue – remains the law in Marion County. To grant the

2

At the hearing, Mr. Bowes admitted that he did not think to challenge the Statute until he lost
the Democratic primary election. Had he finished in the top eight, in his words, “the issue would
have been moot” as to him.

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Plaintiffs the relief they seek and order that their names appear on the general election
ballot would be inconsistent with that stay.
In addition, such an order would cause extreme prejudice to the Defendants. First,
it would disenfranchise those Marion County voters who have already cast ballots, and
this is no small matter; as of October 29, 2014, approximately 10,000 Marion County
registered voters cast their ballots for Marion Superior Court Judge. Second, it would
cause undue expense to the Marion County Election Board, as it would be forced to issue
over 600,000 new ballots for purposes of the November 4 general election. In any event,
the Marion County Election Board is not a party to this action. Thus, it is not clear that
the court could even order the Marion County Election Board to take that type of
extraordinary action at this late date. Third, the requested relief would cause undue
confusion to the Marion County electorate, as both Mr. Starkey and Mr. Bowes lost in the
Democratic primary election. Lastly, the court’s ruling in Common Cause came as a
result of cross-motions for summary judgment. The Seventh Circuit standard of review
for motions of that sort is de novo. Consequently, as much as the court would like to
think its ruling will be affirmed, there are no guarantees. The Court could easily interpret
the relevant case law, including New York State Board of Elections v. Lopez-Torres, 552
U.S. 196 (2008), differently than this court, resulting in reversal. For these reasons, the
court finds Plaintiffs’ motion for injunctive relief is barred by laches.
III.

Conclusion
For the reasons set forth above, Plaintiffs’ Amended Motion for Preliminary

Injunction (Filing No. 29) is DENIED. In addition, Plaintiffs’ Motion for Preliminary
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Injunction (Filing No. 5) and Motion for a Speedy Hearing (Filing No. 7) are DENIED
as MOOT.

SO ORDERED this 19th day of November 2014.

_________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

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