Columbus City Council member Joseph “Jay” Foyst has asked the Indiana Supreme Court to take up the long-running legal battle over the validity of his candidacy in the 2023 municipal election.
On Friday, Foyst filed an appeal to the Indiana Supreme Court — known as a petition to transfer — asking the justices to vacate an appellate court decision in July that found he was not a valid candidate for Columbus City Council District 6 in the 2023 municipal election and affirm a previous trial court’s decision that upheld his candidacy.
While Foyst has asked the Indiana Supreme Court to take up the case, the high court has no obligation to do so. If the justices decide not to hear the case, the appellate court decision will be final.
“Mr. Foyst won. The opinion improperly gave the defeated candidate the council seat by holding that the winning candidate could not be renominated for the council seat because the first notice of caucus was filed a day late,” Foyst’s attorneys argue in the petition. “The opinion, if allowed to stand, would serve only to thwart the will of the 454 voters who chose Mr. Foyst to represent them on the Columbus City Council.”
In the petition, Foyst’s attorneys challenge on several grounds the unanimous decision on July 16 by a panel of Indiana appellate court judges, who ruled that Foyst was not a valid candidate in the 2023 municipal election because the Bartholomew County Republican Party failed to “meet a statutory deadline for filling a vacancy on a general election ballot.”
The appellate judges sent the case back to a lower court with instructions to declare Bryan Muñoz, the Democratic nominee for the seat, the winner of the 2023 election.
Foyst’s attorneys cite several previous decisions — including one from the Kentucky Supreme Court nearly 100 years ago, as well as the Indiana Supreme Court and “a number of federal cases” — and make several arguments, including that the law used to place Foyst on the ballot after he had been previously removed “presumes that a vacancy exists due to the successful challenge of a duly selected candidate.”
“The opinion cited nothing to support the conclusion that the statute ‘presumes’ the vacancy existed due to the challenge of a ‘duly selected candidate,’” Foyst’s attorneys argue in the petition. “It is respectfully submitted that a vacancy, no matter the cause, is a vacancy which may be filled under the statute.”
Bartholomew County Democratic Party Chair Ross, who filed two challenges over Foyst’s candidacy last year, as well as the lawsuit that now may head to the Indiana Supreme Court, told The Republic on Friday that he plans to file a formal response to the petition next week.
“The Court of Appeals opinion follows clear, unambiguous statutory law regarding filing deadlines and the prohibition on the acceptance of late filings by the clerk,” Thomas said. “The opinion also relies on established Indiana Supreme Court precedent in granting the appropriate remedy, so there really isn’t much of a basis to warrant a Supreme Court review. That being said, Mr. Foyst is well within his rights to use every avenue available to him in the appeals process and I am more than happy to see this case through to its conclusion.”
The decision is the latest twist in a legal battle over Foyst’s candidacy that started this past summer over the Bartholomew County Republican Party’s efforts to fill a vacancy for the Columbus City Council District 6 seat in the 2023 general election.
Foyst was initially selected as the Republican nominee for Columbus City Council District 6 in the 2023 municipal election during a party caucus held in July 2023 after nobody filed to run for the seat in the GOP primary, leaving a vacancy in the Nov. 7 general election.
Thomas challenged Foyst’s candidacy this past summer, arguing that local GOP officials failed to file a required notice of the party caucus with the Bartholomew County Clerk’s Office before the state-imposed deadline. In August, the bipartisan Bartholomew County Election Board upheld Thomas’ challenge and removed Foyst from the ballot.
However, the Bartholomew County Republican Party decided to hold another caucus and selected Foyst once again to fill the vacancy, pointing to a section in the Indiana Code that allowed the GOP to fill the vacancy following “the successful challenge of a candidate.”
Thomas then attempted to challenge Foyst’s candidacy again, but his request was denied by Bartholomew County Clerk Shari Lentz because the deadline had passed to file a challenge, prompting Thomas to file a lawsuit against Foyst and all three members of the Bartholomew County Election Board, including Lentz.
The case was initially assigned to Bartholomew Circuit Judge Kelly Benjamin, who recused herself. The case was later turned over to Special Judge K. Mark Loyd. In November, Loyd dismissed the claims against the Bartholomew County Election Board, leaving Foyst as the lone defendant.
While the lawsuit was pending before the special judge, Foyst won the Columbus City Council District 6 seat in the 2023 municipal election, defeating Muñoz with 59.5% of the vote.
The dispute in the lawsuit largely centered around the interpretation of Indiana Code 3-13-1-7(b)(7) and the extent to which it applies to Foyst. The law states that a political party may take action to fill a ballot vacancy within 30 days following “the successful challenge of a candidate,” provided that the vacancy is filled more than 13 days before the election.
Thomas, for his part, argued that the provision does not apply to Foyst because he was “never a valid candidate” because the local GOP missed a filing deadline for the first caucus.
“Missing the deadline ends the game,” Thomas argued in court filings earlier this year. “… A ‘successful challenge of a candidate’ would only apply to someone that was at some point a valid candidate on the ballot, not a ‘candidacy that never existed’ because it was untimely.”
Foyst’s attorneys argued that removing Foyst from office would disenfranchise voters and questioned why missing a statutory filing deadline would invalidate his candidacy.
“(Thomas’) argument, if accepted, would serve only to thwart the will of the 454 voters who chose Mr. Foyst to represent them on the Columbus City (Council),” Foyst’s attorneys stated in court filings earlier this year. “…(Thomas) expends much verbiage claiming that the vacancy could not be filled by Mr. Foyst because his original candidacy filing was a day late. The obvious question is why not? There was a vacancy. There is no claim he did not meet the qualifications for the post.”
A couple of weeks after Foyst was sworn into office, Loyd upheld his candidacy, ruling that the additional Republican caucus in which Foyst was elected to fill a vacancy for the party’s nomination for Columbus City Council District 6 met requirements under state law.
“This case involves mostly undisputed facts, and ultimately the legal conclusion turns on matters of statutory interpretation,” Loyd said in the ruling. “The legislature is presumed to act intentionally, and the analysis is nonpartisan.”
Thomas appealed the lower court’s decision.
The panel of appellate judges, for their part, sided with Thomas, finding that “Foyst’s candidacy never existed in the eyes of the law” and therefore could not be placed on the ballot during the second caucus.
Earlier this summer, Foyst unsuccessfully attempted to pause the appeals court decision, arguing that “new information has come to light” regarding Muñoz’s residency, alleging that his opponent may not have been residing in the district.
Muñoz told The Republic previously that he had been renting a place in Fishers to temporarily be closer to work while the legal challenge over his opponent’s candidacy was playing out but has been maintaining residence in District 6 with what he described as a “close family friend.”
“As I was waiting for the challenge to play out, I started staying closer to work in Indianapolis, but I still have residence in District 6,” Muñoz said. “So, when the time comes to be sworn in, I’ll be a resident of District 6. It’s obviously a complicated situation because of how slow the judicial process took.”
