DECOLA v. STARKE COUNTY ELECTION BOARD (2025)

MEMORANDUM DECISION

Case Summary

[1] Thomas DeCola appeals the trial court's order affirming a decision by the Starke County Election Board (“the Board”) to remove him from the 2024 Republican Primary Ballot. We affirm.

Issues

[2] DeCola raises three issues for our review, which we consolidate and restate as the following two issues:

1. Whether the trial court erred when it affirmed the Board's decision to remove him from the ballot.

2. Whether the trial court erred when it denied DeCola's request to proceed in forma pauperis.

Facts and Procedural History

[3] On January 23, 2024, DeCola filed a Declaration of Candidacy in Starke County and requested to be placed on the Republican Party's primary ballot for the position of an at-large county councilman. DeCola listed his address as 7410 W. 250 S., North Judson, Indiana. See Appellant's App. Vol. 2 at 45. Then, on February 16, David Pearman filed a Candidate Filing Challenge form and asserted that DeCola “does not reside in the County[.]” Id. at 51.

[4] The Board held a hearing on February 29 to determine whether DeCola should be removed from the ballot. During the hearing, DeCola, who appeared pro se, testified that he is a “transient person” who lives in Starke County. Id. at 58. He also testified that he had originally lived in the house next door but tore it down and then turned the pole barn at 7410 W. 250 S. into a residence. He then clarified that his father owned the property at 7410 W. 250 S. and that he “stores tools and material there.” Id. at 59. DeCola also testified that he stays at his brother's house in Jasper County and sleeps there “every night” but that he is “usually in Starke County almost every day[.]” Id. at 58, 62. DeCola testified that he “can sleep in a different county” but that “it is his intent and choice that he make[ ] Starke County his residence.” Id. at 64. He then stated that his driver's license lists the address in Starke County and that he pays the gas and electric bill for that property. At the conclusion of the hearing, the Board voted to remove DeCola from the ballot.

[5] On March 1, DeCola filed a petition to review the Board's decision with the trial court. In that petition, DeCola alleged that he had “sustained a residence, transient residence, and non-traditional residence” in Starke County “since 2012” and requested that the trial court reverse the Board's decision. Id. at 5. DeCola also filed a motion to proceed in forma pauperis “based upon the circumstance that it is an issue affecting a candidate upon the ballot.” Id. at 3. The Board filed a response to DeCola's petition to review its decision and contended that, while DeCola had “orally stated his intention to make Starke County his domicile,” he had “failed to manifest that intent through requisite acts in furtherance of this stated intent.” Id. at 36. The Board maintained that DeCola's “own testimonial evidence during the hearing,” that he slept at his brother's house in another county every night and used the location in Starke County to store tools, “demonstrates conduct to the contrary.” Id. at 36-37. DeCola filed a reply and again asserted that, even though he “sleeps in Jasper County,” he is a resident of Starke County because he “now calls 7410 W. 250 S. ․ his transient and temporary place of residence.” Id. at 85-86.

[6] Thereafter, the trial court issued findings of fact and conclusions thereon. As an initial matter, the court noted that DeCola had challenged the Board's decision as failing to comply with the Indiana Administrative Orders and Procedures Act (“AOPA”). However, the court found that the Board “is not an agency under AOPA.” Id. at 90. The court then found that “[i]t was pointed out at the Challenge hearing that the use of a pole barn ․ has not been approved for occupancy,” that DeCola “could not be found at 7410 West 250 South for purposes of service of the Notice of the Hearing,” and that DeCola “goes to the pole barn because he stores tools and materials there and has a tool shop.” Id. at 90. The court concluded that the Board's decision to remove DeCola from the ballot was “neither illegal nor arbitrary nor an abuse of discretion and is supported by competent evidence and legal authority.” Id. at 91. Accordingly, the court affirmed the Board's decision and denied DeCola's motion to proceed in forma pauperis.

[7] On March 21, DeCola filed a motion “for a refund of his filing fee for this case based upon the fact that the review concerned an election issue.” Id. at 93. The court summarily denied that motion. DeCola then filed a motion to correct error and contended that AOPA applied to the Board's decision and that his filing fee should be reimbursed. The trial court denied DeCola's motion. This appeal ensued.

Discussion and Decision

Issue One: Review of Board's Decision

[8] DeCola asserts that the trial court erred when it affirmed the Board's decision to remove him from the ballot. On this issue, DeCola first asserts that the court erred when it concluded that AOPA does not apply in this case. However, this Court has repeatedly stated that AOPA does not apply to county election boards. See Clay v. Marrero, 774 N.E.2d 520, 521 n.3 (Ind. Ct. App. 2002) (stating that AOPA does not apply to county election boards); see also Price v. Lake Cnty. Bd. of Elections and Registration, 952 N.E.2d 807, 809 n.3 (Ind. Ct. App. 2011) (same). As such, the court did not err when it concluded that AOPA does not apply to the Board's decision.

[9] DeCola also contends that the court erred when it affirmed the Board's decision to remove him from the ballot for failing to meet the residency requirement. According to DeCola, he met that requirement because he “had no immediate intention of leaving his residency within Starke County for another residency somewhere else as shown by documents providing proof of his residence.” Appellant's Br. at 8. However, we need not reach the merits of DeCola's claim.

[10] As we have stated, a case is “moot when no effective relief can be rendered to the parties before the court.” DeCola v. Starke Cnty. Election Bd., 146 N.E.3d 1084, 1085 (Ind. Ct. App. 2020). Here, as both the 2024 Primary and General Elections have passed, we could not provide DeCola the relief he seeks by reinstating his candidacy and placing him on the ballot. Thus, while we express no opinion on the merits of the trial court's order, even if we were to agree that the trial court erred when it affirmed the Board's decision, we could not render DeCola any effective relief, and this issue is moot.

Issue Two: In Forma Pauperis

[11] DeCola next contends that the trial court erred when it denied his motion to proceed in forma pauperis and when it denied his motion to refund costs. DeCola's entire argument on this issue is as follows: “DeCola argued that county election board issues brought before a judicial review should proceed in form[a] pauperis as a matter of course for keeping propriety over the election process. The Trial Court denied all requests from DeCola to proceed in forma pauperis.” Appellant's Br. at 7 (footnotes omitted).

[12] Stated differently, DeCola asserts that a trial court should automatically grant all motions to proceed in forma pauperis in election-related cases. However, DeCola has not provided any citation to authority to support that contention. Rather, Indiana Code Section 33-37-3-2(a) states that a person entitled to bring a civil action may do so without paying the required fees or other court costs if the person files a statement in court, under oath and in writing “declaring that the person is unable to make the payments,” that the person “believes that the person is entitled to the redress sought in the action” and “setting forth briefly the nature of the action.” Additionally, a clerk shall waive the payment of required fees without court approval if the person is represented by an attorney employed through a legal aid program or an attorney who is serving pro bono and the attorney files a statement with the clerk that is “accompanied by an approved affidavit of indigency.” Ind. Code § 33-37-3-2(b).

[13] Thus, the Indiana General Assembly has made it clear that a person can file a civil action without paying the required fees and costs only if the person files a sworn statement declaring his or her indigency or has a pro bono attorney who files a statement declaring the person's indigency. There is no exception in that statute that would permit a court to waive the filing fees for all election-related issues, and we cannot create one where one does not exist. See Ind. Alcohol and Tobacco Comm'n v. Spirited Sales, LLC, 79 N.E.3d 371, 376 (Ind. 2017) (stating that we “may not add new words to the statute which are not the expressed intent of the legislature.”).

[14] Similarly, DeCola has not demonstrated that the trial court erred when it denied his specific request to proceed in forma pauperis or his request for a refund on his filing fees as he has not directed us to any portion of the record on appeal to indicate that he filed a sworn written statement in court declaring his indigency. DeCola has not met his burden on appeal to demonstrate that the trial court erred on this issue.

Conclusion

[15] The trial court did not err when it concluded that AOPA does not apply to county election boards, and the question regarding the merits of the trial court's decision to affirm the Board's decision is moot. Further, DeCola has not demonstrated that the court is required to grant all election-related motions to proceed in forma pauperis or that it erred when it denied his motions to proceed in forma pauperis and to refund fees. We therefore affirm the trial court.

[16] Affirmed.

Bailey, Judge.

Bradford, J., and Foley, J., concur.