Charles E. Bentz v. Jennings County Election Board

FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEY FOR APPELLEE:

ALAN L. MARSHALL     MICHAEL L. ROGERS
McConnell & Finnerty    Rogers & Dove
North Vernon, Indiana    North Vernon, Indiana

IN THE
COURT OF APPEALS OF INDIANA

CHARLES E. BENTZ, ) ) Appellant-Plaintiff, ) ) vs. ) No. 40A04-9812-CV-627 ) EDWIN B. JUDD, JENNINGS COUNTY ) ELECTION BOARD, SHERIFF OF JENNINGS ) COUNTY, BILL FOIST, in his capacity as ) Clerk of Courts, Jennings County, Indiana, ) ) Appellees-Defendants. )

APPEAL FROM THE JENNINGS CIRCUIT COURT
The Honorable Norman Curry, Special Judge
Cause No. 40C01-9811-MI-401

June 29, 1999

OPINION - FOR PUBLICATION

DARDEN, Judge STATEMENT OF THE CASE
    Charles E. Bentz appeals the dismissal of his petition seeking a recount and contesting the results of an election.
    We affirm.
FACTS
    Edwin B. Judd was declared the winner in the November 3, 1998, race for auditor of Jennings County. On November 9, 1998, Charles Bentz -- the losing candidate -- filed a petition in Jennings Circuit Court for a recount. His petition began,
    "Comes now the Petitioner, Charles E. Bentz, being first duly sworn upon his oath says as follows . . . ."
 
(R. 9). On November 13, Judd moved the court to dismiss Bentz' petition because it was "neither verified nor notarized." (R. 24). The trial court granted the motion, holding that because the petition "was not properly verified," the court had no jurisdiction. (R. 78).
DECISION
    The procedure for a recount of election votes "is a purely statutory proceeding," and as our supreme court has "said many times, one following a statutory proceeding must bring himself strictly within the terms thereof." Marra v. Clapp, 255 Ind. 97, 262 N.E.2d 630 (Ind. 1970). By statute, a candidate seeking a recount "must file a verified petition" within seven days of election day. Ind. Code 3-12-6-2(a). Compliance with the verification requirement is necessary to invoke the subject matter jurisdiction of the trial court. State ex rel. Young v. Noble Circuit Court, 263 Ind. 353, 332 N.E.2d 99, 102 (Ind. 1975). When the verification requirement is not complied with, the trial court lacks subject matter jurisdiction. Id.     As Bentz properly observes, the essential purpose of a verification is that the statements by the petitioner in the petition be made under penalties for perjury, citing Board of Dental Examiners v. Judd, 554 N.E.2d 829, 831 (Ind. Ct. App. 1990). Bentz then refers us to Austin v. Sanders, 492 N.E.2d 8, (Ind. 1996), wherein our supreme court found a petitioner's recount petition stating she "affirm[ed] under penalty of perjury that the statements in the foregoing Petition are true and correct" complied with Ind. Trial Rule 11(B) and constituted a proper verification.See footnote 1 However, Bentz' petition did not affirm under penalty of perjury his statements. Thus, his analysis of Austin is inapposite here.
    Bentz then returns to Board of Dental Examiners and argues that the "nearly identical" language in his petition should suffice to establish verification for the purpose of subject matter jurisdiction as it did in that case. In Board, the Board of Dental Examiners argued that Dr. Judd's petition for judicial review "was insufficiently verified, thereby denying the trial court jurisdiction." 554 N.E.2d at 829. Dr. Judd's petition stated, "Comes now James T. Judd, D.D.S. and being duly sworn upon his oath, alleges and says[.]" Id. We relied upon Jaske v. State, 539 N.E.2d 492, 495 (Ind. Ct. App. 1989), vacated on other grounds 553 N.E.2d 181 (1990), wherein the petition stated, "'Comes now the Defendant, Roger Allen Jaske . . . who, being first being (sic) duly sworn upon his oath, says[. ]'" Id. We noted that

Jaske's petition was held to be "properly verified because 'Jaske swore his statement under oath administered by a notary.'" Id. (quoting Jaske at 494). We then concluded that "[l]ike the petitioner in Jaske, Judd's verification was sufficient to subject him to the penalties for perjury" and invoke the trial court's jurisdiction. Id. at 832.
    Although the language in Bentz' petition is indeed very similar to that in Dr. Judd's petition, Bentz did not swear his statement under an oath administered by a notary. Bentz contends that "Austin clearly stated that a notary is not required." Bentz' Brief at 11. However, he does not quote such a statement from Austin for us, and we find the case to resolve precisely the issue stated:
    has a party who verifies the truth of his petition in accordance with Trial Rule 11(B) successfully invoked the jurisdiction of the trial court or is he required to have his verification sworn before an officer authorized to administer oaths?
 
492 N.E.2d at 9. Austin held that the petitioner who verified her petition in accordance with T.R. 11(B) had successfully invoked the jurisdiction of the trial court.
    Moreover, Austin noted the question before it was unlike that in Gossard v. Vawter, 215 Ind. 583, 21 N.E.2d 416, 417 (1939), because Gossard "had not verified the truth of his petition in any way, sworn or unsworn." 492 N.E.2d at 9. What Gossard in fact did was to begin his petition, "'Comes now Garrett W. Gossard, . . . who, being first duly sworn, upon his oath says[.]" 21 N.E.2d at 416. However, the jurat of the notary was unsigned. Therefore, Gossard held that the petition was properly dismissed for lack of subject matter jurisdiction. Because the question considered differed, Austin left intact the holding of Gossard.     Bentz' petition did not affirm the truth of his representations pursuant to the language of T.R. 11(B). His representations "sworn upon his oath" were not made before a notary. Accordingly, the trial court did not err in dismissing his petition for lack of subject matter jurisdiction.
    We affirm.
SHARPNACK, C.J., and ROBB, J., concur.

Footnote:     1 T.R. 11(B) provides as follows:
    When in connection with any . . . special statutory proceeding it is required that any . . . petition . . . be verified, . . . it shall be sufficient if the subscriber simply affirms the truth of the matter to be verified by an affirmation or representation in substantially the following language: "I (we) affirm, under the penalties for perjury, that the foregoing representation(s) is (are) true.
    (Signed) _____________" Any person who falsifies an affirmation or representation of fact shall be     subject to the same penalties as are prescribed by law for the making of a false affidavit.