Foyst files motion to pause appellate court decision

An attorney representing Columbus City Council member Joseph “Jay” Foyst is pressing a special judge to pause an appeals court decision directing a lower court to declare his opponent the winner of the 2023 municipal election, alleging that his opponent may not have been residing in the district.

Foyst, through his attorney George “Jay” Hoffman III, filed a motion in Bartholomew Circuit Court on Wednesday, asking the special judge to pause last week’s appeals court decision, arguing that “new information has come to light” regarding Democratic nominee Bryan Muñoz’s residency, according to court filings.

On July 16, a panel of Indiana appellate court judges unanimously ruled that Foyst was not a valid candidate in the 2023 municipal election for District 6 because the Bartholomew County Republican Party failed to “meet a statutory deadline for filling a vacancy on a general election ballot.”

The appellate court judges have sent the case back to a lower court with instructions to declare Muñoz the winner of the election.

In the motion, Foyst’s attorney alleges that Muñoz rented an apartment at Slate at Fishers District Luxury Villas and Townhomes in Fishers and sold his home in Columbus.

“It is unclear at this time when Bryan Muñoz rented the apartment in Fishers, Indiana,” Foyst’s attorney alleges in the motion. “If Mr. Munoz moved to Fishers prior to the election in November 2023, then a determination as to whether he ‘resided’ in District 6 at the time of the election could have disqualified him from being a candidate for Columbus Council for District 6. …If Mr. Muñoz moved to Fishers after the election then a determination as to whether he ‘resided’ in District 6 could disqualify him as a member of Columbus Common Council.”

The motion includes screenshots of Muñoz’s social media pages, including what appears to be a Google search result for Muñoz’s Facebook profiles stating that he “lives in Fishers, Indiana” and a Facebook post in which Muñoz allegedly states “my return is imminent,” though the full context of that statement is not included.

While the motion asks the special judge to pause “the declaration that Muñoz was the winner of the 2023 general election,” it does not contain any explicit reference to the part of the decision that found that Foyst was not a valid candidate and could not lawfully placed on the ballot in the 2023 municipal election.

The motion comes just days after Muñoz told The Republic that he has 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.”

Muñoz, who was previously the band director at Columbus North High School, left the Bartholomew Consolidated School Corp. at the end of 2022 to take a job at Indianapolis-based Music Travel Consultants.

Muñoz is listed as assistant director of sales for the company, according to his LinkedIn profile and the company’s website.

Muñoz sold his home on Cedarcrest Drive on the north side of the city earlier this year, according to county records. The Cedarcrest Drive address, which is in District 6, was listed on his voter registration as of last week, according to the Bartholomew County Clerk’s Office.

“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 told The Republic on Friday. “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.”

Bartholomew County Democratic Party Chair Ross Thomas, who filed the lawsuit challenging Foyst’s candidacy last year, said he plans to respond to the motion, describing it as “frivolous” and emphasizing that the special judge has no jurisdiction over the case at this point.

Currently, the case remains before the Indiana Court of Appeals, as the decision has not been certified. Appellate court decisions are certified 45 days after they are issued, barring an appeal to the Indiana Supreme Court.

It is unclear if Foyst plan to appeal to the Indiana Supreme Court. Even if he does appeal it, the Indiana Supreme Court is not obligated to hear the case.

However, the only way that the trial court judge could regain jurisdiction over the case would be if Foyst decides not to appeal to the Indiana Supreme Court, if the Indiana Supreme Court decides not to hear the appeal or if the high court hears the appeal but affirms the appellate court decision, Thomas said.

In each of those scenarios, the trial court judge would be required to follow the appellate court decision and declare Muñoz the winner, Thomas said.

“If any of those things happen, then the case is remanded back to the trial judge with orders to declare Muñoz the winner, not orders to open some kind of inquiry or some kind of political issue,” Thomas said. “It’s remanded to the judge with orders. He does not get to pick and choose what orders to follow.”

Thomas said Muñoz has maintained residence in District 6, and even if he were declared ineligible for some reason, the party that won the seat would select a replacement to fill the vacancy. Following the appellate court decision, the winning party would be the Democrats, he said.

“(The Republicans) had every opportunity to challenge him, but there was no basis for a challenge because he lived in the district when he filed, he lived in the district when he ran and he lived in the district at the time of the election,” Thomas said. “…The result of the election, as it stood, was that he was the loser. Once Foyst was declared the winner, Mr. Muñoz had no obligation to live anywhere in particular, but he still maintained an intent to return if that changed. There are no residency requirements for a person who is declared the loser of an election.”

“If a challenge were filed legal at a court or an election board or anybody in authority would find that he did not meet residence requirements, guest what? The Democratic Party gets to choose his replacement,” Thomas added later in the interview. “It does not invalidate the election. The time to challenge his election is over.”

The motion, which was pending in Bartholomew Circuit Court as of midday Thursday, 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.

Bartholomew County Democratic Party Chair Ross 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 Court 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. “…The county chairman 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 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.