Attorneys for indicted Republican mayoral candidate Matt Kelty want the nine counts dismissed, saying in part they infringe on Kelty’s rights to free speech and that his actions did not constitute a crime.
Filed late Monday afternoon by Kelty’s Indianapolis-based attorneys Larry Mackey and Jason Barclay, as well as his local attorneys Travis Friend and Frank J. Gray, the motion to dismiss includes a 36-page memorandum of law outlining the reasons behind the request for the dismissal.
“Matthew Kelty has been wrongly charged by a grand jury with crimes he did not commit,” the memorandum said. “Fair and impartial justice requires the pending indictment against him be dismissed.”
In August, a grand jury, convened by special prosecutor Dan Sigler, issued a nine-count indictment against Kelty alleging improper handling of campaign contributions and that he lied in his testimony to the grand jury.
Five of the felony indictments deal with how Kelty reported a $150,000 loan he received from Fred Rost, former campaign chairman and head of Allen County Right to Life, and another $10,000 he received from Steve and Glenna Jehl, his campaign manager.
Two additional felony counts allege perjury in his testimony regarding a Zogby opinion poll conducted before the Republican primary.
The remaining two counts are misdemeanors, recklessly commingling funds, stemming from how he handled his personal versus campaign money.
Although Kelty initially reported he loaned his campaign $140,000 and $8,000 in late December, after he defeated Nelson Peters in the Republican primary in May, Kelty revealed the money originally came from personal loans from Rost and the Jehls.
His attorneys are arguing there is no Indiana law that says a candidate cannot borrow money from a personal acquaintance or friend, nor one that prohibits a candidate from loaning the proceeds of a prior loan to his or her campaign committee, according to court documents.
Rost signed an affidavit saying he loaned Kelty the money in December, with a promissory note indicating Kelty would pay $1,000 in interest payments from Jan. 1 to Nov. 1. From June 1 to Nov. 1, Kelty would pay an additional $25,000 a month in payments on the loan’s principal, with the full amount coming due Nov. 1.
In the affidavit, Rost said he intended for Kelty to repay the loan in full and had no intentions of forgiving the debt, according to court documents.
Campaign contributions are a form of political speech protected by the Constitution and the indictments would violate the First Amendment by preventing future candidates from ever using a personal loan to finance a campaign, according to the documents.
Because, his attorneys argue, the loans were personal, they could not be considered a campaign contribution, according to the documents.
Regarding the perjury counts, his attorneys argue that because Kelty answered Sigler’s question “That’s your testimony?” with a “Yes, sir” when asked about whether Rost commissioned the Zogby poll, his answer was literally true.
Kelty had not been asked whether his story was truthful, but whether that was his testimony. “By answering yes, he is only indicating that the prosecutor’s recitation of the facts is in fact an accurate recitation and that is in fact ‘his story,’ ” according to the documents.