do this week: motion to indiana supreme court re prevailing party status under footnote 11.

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   This is an extraordianary motion for further relief, in relation to a case that was heard on a certified question.
   There is an initial threshhold question as to whether this court has any jurisdiction to hear the merits of this motion. Counsel is not aware of a specific rule governing this rare situation, and falls back on the generality of rule 1, and the court's inherent equitable powers to do justice rather than injustice, and to correct or modify its rulings within a reasonable time.
   Plaintiffs filed in federal court in 1998 alledging that Ind. Code's 3-9-3-2.5 prohibition of political speech violated the federal and state constitutions. [Initially, plaintiffs' lawsuit brought partial relief by causing the statute to be construed narrowly, but plaintiff was denied fees for this limited success, so appealed to the seventh circuit. At the 7th, a question of state law was certified to this court, which not only broadly construed the statute to reach speech by all persons, but went on to say the statute was constitutional, except in one small respect.
In footnote 11, this court held that it would be arbitrary and capricious to find that the 100 copies exception applies only to united states mail, and broadly construed it as a safe harbor for up to 100 copies in any medium.
This was a question which had not been asked by the seventh, and had not been briefed by the parties, but was within the powers of the court to rephrase the question presented.
While a small victory, this turned out to be key to the central question in the case, whether brian majors need fear prosecution for having handmade a few signs that had messages such as vote for brian majors.
The 7th circuit denied all relief, denying the merits, denying fees and costs based on Majors having prevailed as to footnote 11, [changing the legal relations between the parties per Farrar v Hobby], denying injunction of the brochure which did and does make a claim contrary to footnote 11. The court cited McConnell as authority for upholding the statute, and did not address any of the other claims.  A dubitante opinion by Judge Easterbrook correctly states the law and shows that the majority opinion is in error. This motion is not an attempt to re-address the upholding of the statute, either the dicta by this court, or the decision by the circuit.
While both opinions are wrong, for different reasons, they are controlling and final. A motion for reconsideration was denied April 7th. On July 9th, the clerk of the Supreme Court of the United States properly rejected an attempted filing of a petition for certiorari, as untimely. Circumstances beyond control of counsel had prevented it being filed sooner, and an error had been made in the calculation of the deadline for the petition.
Plaintiffs' motion here, for further relief to enforce footnote 11, would have been unripe prior to exhaustion of remedies in federal court, and this motion is filed within a reasonable time of that exhaustion.
It is not at all clear whether this court retains any jurisdiction to modify its opinion at this time, to establish more clearly whether plaintiffs are prevailing parties based on footnote 11, or whether injunctive relief can be obtained to enforce footnote 11, which is being defied both by the state elections board, and by at least one county elections board.
This court has jurisdiction to determine its own jurisdiction, and has equitable powers to correct an injustice which was only latent until now.
Even if the court has jurisdiction, there is the issue of what remedy is proper, given that the 7th circuit has, or has had, primary jurisdiction over the case.
Perhaps this court can, if it wishes, award fees, limited solely to the note 11 issue, and or issue temporary or permanent injunctive relief. Perhaps that would be imposing on the prerogatives of the circuit court, and the most that this court can do is to modify or supplement its prior opinion to clarify that, to some limited extent, plaintiffs have prevailed. In the event of such a modification, the circuit could then revisit the issue of fees and injuctive relief, or not, as it chooses, in its own characteristic manner.
Plaintiffs believe that an injustice has been done in this case, which is within the power of this court to correct, to the limited extent that it can modify its opinion, to clarify that plaintiffs are a  PREVAILING PARTY as to the issue in note 11, and present the circuit with the opportunity to revise its finding as to the matter of costs and fees based on the limited success  plaintiffs obtained in note 11.
Rule 1 of the state court is in harmony with rule 1 of the federal court - [fast and efficient, but do justice. find out what rule 1 is ]

Respectfully submitted,

Robbin Stewart.
certifications.
this needs lots of work.
put main issue in first paragraph.
tell eric barnes story.
quote footnote 11.
cite and quote farrar v hobby.

 

 

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