Jessica Kerman
jessica.kerman@heraldbulletin.com
A decision by Madison Circuit Court Judge Fredrick Spencer regarding a recount request from Antony “Ty” Bibbs was upheld in the Indiana Court of Appeals on Wednesday.
According to the decision from Indiana Court of Appeals Chief Judge John G. Baker, Spencer properly dismissed Bibbs’ petition for a recount because it was not verified under oath.
“Inasmuch as Bibbs’s petitions did not comply with the requirement that they be verified, the trial court was without discretion to permit him to amend them,” the appellate court judgment said. “Thus, the trial court properly dismissed Bibbs’s petitions for failure to comply with the relevant statutes.”
On May 8, Bibbs unsuccessfully ran for an Anderson City Council at-large seat on the Democratic primary ticket. Bibbs filed a petition for a recount and contest on May 18. In his petition, he claimed that possible mistakes during the election led to his 22-vote loss to candidate David Eicks.
However, the petition was not verified under oath before it was filed. On June 13, Spencer decided that the case should be dismissed because of an error.
“Petitioner Bibbs’ petition is severely deficient in several respects, all of which could have been easily cured if he had sought legal counsel sooner,” Spencer wrote in his June decision. “Arguably, Bibbs’ petition could be read to meet most of the requirements of the law, but the requirement that the petition be ‘Verified’ cannot under any tortured stretch of the imagination be found.”
“Verified” means to be sworn to under oath or the truth of allegations are affirmed under the pains or penalties for perjury, according to Spencer’s decision.
Spencer said he did not think the appellate court’s decision discourages people from going through the recount process.
“What’s really important is that Mr. Bibbs squandered his one and only chance to have the election results examined by attempting to be his own attorney,” Spencer said. “If you don’t know what you’re doing, you shouldn’t try to fly an airplane.”
Neither Bibbs nor his attorney, Mark King, returned phone calls Wednesday for comments.
“I’m just glad it’s over,” Madison County Clerk Ludy Watkins said. “It’s resolved.”
Bibbs requested a recount of all precincts in Anderson and a contest, or another election, for the same precincts. In his petition, Bibbs said he believed voters were told that they had to vote for three candidates, instead of up to three candidates, in the city council at-large Democratic race. Also, Bibbs said voters were unable to review their selections for the race.
Watkins said she did not anticipate a ruling in Bibbs’ favor, but if the court were to have gone that way, she was not sure what the next would have been.
“We thought about this,” Watkins said. “We were thinking, ‘What would we do?’ because we’ve never been in that situation.”
The appellate court’s judgment also called the appeal “moot” because the 2007 general election “has come and gone.”
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Bibbs case timeline:
May 8, 2007: Antony “Ty” Bibbs runs for Anderson City Council at large in the Democratic primary. He loses by 22 votes to David Eicks.
May 18, 2007: Bibbs files a petition for a recount and contest of all precincts in Anderson that vote for the at-large seat.
May 29, 2007: Madison Circuit Court Judge Fredrick Spencer sets the date of a hearing for the recount. The hearing for the petition was originally set for May 31; however, Mark King, Bibbs’ attorney requested an extension.
June 13, 2007: Spencer decides the petition was not filed correctly and dismisses the request for a recount and contest.
June 26, 2007: King files an appeal to Spencer’s decision.
July 3, 2007: Bibbs announces he will run as a write-in candidate for mayor of Anderson.
Sept. 12, 2007: A total of 22 people filed Election Fraud and Accessibility Grievance Forms with the state in regard to the May 8 primary. Several of the forms made reference to Bibbs.
Nov. 6, 2007: Bibbs garners 358 votes out of more than 15,000 in the Anderson mayor race.
Jan. 23, 2008: Judge John G. Baker affirms Spencer’s decision that the petition that was filed was not valid.
