Mike Wolanin | The Republic Judge K. Mark Loyd listens to arguments in a pretrial hearing for Ross Thomas’ lawsuit against Joseph Jay Foyst and the Bartholomew County Election Board at the Bartholomew County Courthouse in Columbus, Ind., Monday, Oct. 16, 2023.
A special judge has ordered Bartholomew County Democratic Party Chair Ross Thomas to respond this week to a motion seeking to pause an appeals court decision and look into the residency of a Democratic nominee for a Columbus City Council seat that has been the subject of a legal fight for roughly a year.
On Monday, Special Judge Mark Loyd ordered Thomas to respond within five days to a motion filed last week by an attorney representing Columbus City Council member Joseph “Jay” Foyst, arguing that Loyd should pause a July 17 appeals court decision directing him to declare Democratic nominee Bryan Muñoz the winner of the 2023 municipal election because “new information has come to light” regarding Muñoz’s residency, according to filings in Bartholomew Circuit Court.
The motion was filed a week after an panel of Indiana appellate court judges unanimously found that Foyst was not a valid candidate for Columbus City Council District 6 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’ decision, which will become official by the end of August unless Foyst appeals to the Indiana Supreme Court and the high court agrees to hear the appeal, stands in stark contrast to Loyd’s Jan. 17 decision and sends the case back to him with instructions to declare Muñoz the winner of the 2023 election.
While the three-judge appellate court panel unanimously found that “Foyst offers no persuasive rationale for reaching a different result in this situation” other than he was not valid candidate and was unlawfully on the general election ballot last year, Loyd had previously ruled to uphold Foyst’s candidacy, stating that his “legal conclusion turns on matters of statutory interpretation” and that the “analysis is nonpartisan.”
Thomas, for his part, said he plans to comply with the judge’s order and potentially respond by today. He previously characterized the motion as “frivolous” and emphasized that the special judge has no jurisdiction over the case at this point.
“I had intended to respond to it anyway,” Thomas told The Republic on Tuesday. “I will probably file something either later today (Tuesday) or first thing in the morning. (I’ve) been working on a response. …The court really has no jurisdiction over the case at this point.”
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.
Muñoz told The Republic earlier this month 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.”
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 plans 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 previously.
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 previously 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 special judge’s order 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 Court Judge Kelly Benjamin, who recused herself. The case was later turned over to Loyd. In November, Loyd dismissed the claims against the Bartholomew County Election Board, leaving Foyst as the lone defendant.
