Preview:

FOR PUBLICATION

APPELLANTS PRO SE: STEVE ANKENY New Castle, Indiana BILL KRUSE Roselawn, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana FRANCES BARROW Deputy Attorney General Indianapolis, Indiana

FILED
Nov 12 2009, 9:55 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
STEVE ANKENY AND BILL KRUSE, Appellants-Plaintiffs, vs. GOVERNOR OF THE STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) ) )

CLERK

No. 49A02-0904-CV-353

APPEAL FROM THE MARION SUPERIOR COURT The Honorable David J. Dreyer, Judge Cause No. 49D10-0812-PL-55511

November 12, 2009 OPINION - FOR PUBLICATION

BROWN, Judge

Steve Ankeny and Bill Kruse (collectively, "Plaintiffs"), pro se, appeal the trial courts grant of a motion to dismiss filed by Mitch Daniels, in his o fficial capacity as the Governor of the State of Indiana ("Governor"). Plaintiffs raise nine issues, which we revise and restate as whether the trial court erred by granting the motion to dismiss under Ind. Trial Rule 12(B)(6).1 We affirm. 2 The relevant facts follow. On December 9, 2008, Plaintiffs filed a "PETITION FOR EXTRAORDINARY WRIT OF PROHIBITION" against the Governor3 to prevent the Governor "from issuing a ,,Certificate of Ascertainment, or any other document, to Congress of the United States containing any popular votes for Barack Obama and Joe Biden for the appointment as Chief Electors . . . [or] John McCain and Sarah Palin for the appointment of Electors." Appellants Appendix at 6. On January 30, 2009, the

We note that pro se litigants, such as Plaintiffs, "are held to the same standard as licensed lawyers." Novatny v. Novatny, 872 N.E.2d 673, 677 n.3 (Ind. Ct. App. 2007). This court will not "indulge in any benevolent presumptions on [their] behalf, or waive any rule for the orderly and proper conduct of [their] appeal." Foley v. Mannor, 844 N.E.2d 494, 496 n.1 (Ind. Ct. App. 2006).
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Thus, we will attempt to address the issues raised by Plaintiffs. To the extent that Plaintiffs raise additional issues, the Plaintiffs fail to develop a cogent argument and cite to authority. Consequently, the arguments are waived. See, e.g., Loomis v. Ameritech, 764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding argument waived for failure to cite authority or provide cogent argument), rehg denied, trans. denied. The trial court also granted the Governors motion to dismiss on the bases of mootness under Ind. Trial Rule 12(B)(1) and the equitable doctrine of laches. Because we find that Plaintiffs failed to state a claim upon which relief can be granted under T.R. 12(B)(6), we need not addres s the trial courts alternative grounds for dismissal.
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The Complaint also named the Democratic National Committee, Barack Obama, the Republican National Committee, and John McCain as defendants. The Plaintiffs state, without citation to the record, that "only the Governor of the State of Indiana accepted Service of Summons." Appellants Brief at 3. We note that the Plaintiffs case summary lists only the Governor as appellee, the Plaintiffs notice of appeal lists only the Governor as defendant, and the Plaintiffs briefs contain certificates of service indicating that the briefs were served upon only the governor.

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Governor filed a motion to dismiss alleging in part that "the Plaintiffs have failed to state a claim upon which relief can be granted." Appellees Appendix at 1. The Governor also filed a memorandum in support of the motion to dismiss. On February 17, 2009, the Plaintiffs filed their opposition to the Governors motion to dismiss. On March 16, 2009, the trial court granted the Governors motion to dismiss after a hearing. On April 13, 2009, the Plaintiffs filed their notice of appeal. The sole issue is whether the trial court erred when it dismissed Plaintiffs complaint. A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim, not the facts supporting it. General Cas. Ins. Co. v. Bright, 885 N.E.2d 56, 57 (Ind. Ct. App. 2008) (citing Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604 (Ind. 2007)). Thus, our review of a trial courts grant or denial of a motion based on Trial Rule 12(B)(6) is de novo. Id. at 58. When reviewing a motion to dismiss, we view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant's favor. Id. A complaint may not be dismissed for failure to state a claim upon which relief can be granted unless it is clear on the face of the complaint that the complaining party is not entitled to relief.4 Id. However, a court

In his brief, the Governor argues that the motion to dismiss included an affidavit, and therefore because "matters outside the pleadings [were] presented to the court on a 12(B)(6) motion, the motion shall be treated as one for summary judgment under T.R. 56. T.R. 12(B)." Appellees Brief at 6. While true that the general rule is that when a motion to dismiss for failure to state a claim under T.R. 12(B)(6) is supplemented with materials outside the pleadings it should be treated as a motion for summary judgment, we note that: [W]hen examination of the face of a complaint alone reveals that the plaintiff will not be entitled to relief under any set of circumstances, consideration of external materials aimed at substantiating or contradicting the complaints factual allegations is irrelevant,

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need not accept as true any "conclusory, non-factual assertions or legal conclusions." Irish v. Woods, 864 N.E.2d 1117, 1120 (Ind. Ct. App. 2007). "Thus, while we do not test the sufficiency of the facts alleged with regards to their adequacy to provide recovery, we do test their sufficiency with regards to whether or not they have stated some factual scenario in which a legally actionable injury has occurred." Trail v. Boys and Girls Clubs of Northwest Indiana, 845 N.E.2d 130, 134 (Ind. 2006). In their complaint, the Plaintiffs appear to suggest that the Governor has a duty to determine a persons eligibility to become President in issuing the "Certificate of Ascertainment" "officially appoint[ing] the electors" who cast the State of Indianas votes in the Electoral College, the body which decides the election for the President of the United States ("President"). Transcript at 13. Specifically, Plaintiffs appear to argue that the Governor did not comply with this duty because: (A) neither President Barack Obama nor Senator John McCain were eligible "to be appointed ,,Elector in Chief in violation of Article II, Section 1, Clause 2s prohibition that no United States Senator

because a fortiori the complaint fails to state a claim upon which relief can be granted under any factual scenario. In that instance, the trial court should exclude material outside the pleadings which are submitted with a 12(B)(6) motion, rather than convert the motion into one for summary judgment, because the external material are irrelevant to the motion. Dixon v. Siwy, 661 N.E.2d 600, 603 (Ind. Ct. App. 1996). In this case, there is no evidence that the trial court considered the material contained in the affidavit prepared by J. Bradley King, Co-Director for the Indiana Election Division, which contains nine paragraphs explaining the vote-tallying process actually carried out following the November 4, 2008 election. The affidavit was not relevant to the trial courts order granting the Governors motion to dismiss. Thus, it was proper for the trial court to exclude this affidavit and handle the Governors motion as a motion to dismiss for failure to state a claim rather than one for summary judgment. See Trail v. Boys and Girls Clubs of Northwest Indiana, 845 N.E.2d 130, 134, 140 (Ind. 2006) (affirming the trial courts grant of a motion to dismiss under Rule 12(B)(6) even after the parties "filed several affidavits, exhibits, and briefs").

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currently holding that office shall be appointed Elector for any State," and (B) neither President Barack Obama nor Senator John McCain were eligible to hold the office of President because neither were "born naturally within any Article IV State of the 50 United States of America . . . ." Appellants Appendix at 11-12, 16-18. Initially, we note that the Plaintiffs do not cite to any authority recognizing that the Governor has a duty to determine the eligibility of a partys nominee for the presidency. The Plaintiffs do not cite to authority, nor do they develop a cogent legal argument stating that a certificate of ascertainment has any relation to the eligibility of the candidates. However, we note that even if the Governor does have such a duty, for the reasons below we cannot say that President Barack Obama or Senator John McCain was not eligible to become President. We will handle each of Plaintiffs arguments in turn. A. Sitting Senator First, Plaintiffs argue that "[t]he Constitution of the United States enumerates qualification for the Office of Presidential and Vice-Presidential Electors, and no ,,sitting Senator, such as Senator Barack Obama and Senator Joseph Biden, or Senator John McCain, was qualified." Appellants Brief at 8. We hold for the reasons stated below that Plaintiffs failed to state a cognizable legal claim upon which relief can be granted. In evaluating Plaintiffs claim, one need not go further than compare their framing of the electoral process in the State of Indiana with Indianas electoral process as constructed by state and federal statute, and indeed by the U.S. Constitution itself. Article II, Section 1 of the U.S. Constitution sets forth how the President is chosen; the 5

mechanism used is called the Electoral College. See 3 U.S.C.

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