Bartholomew County Democratic Party Chair Ross Thomas has pushed back against a bid by Columbus City Council member Joseph “Jay” Foyst to pause an appellate court’s decision directing a lower court to declare his opponent the winner of the 2023 municipal election after “new information has come to light” regarding his opponent’s residency.
Thomas’ response to Foyst’s request to pause the higher court’s decision, filed Wednesday in Bartholomew Circuit Court, is the latest turn of events 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.
On July 16, a panel of Indiana appellate court judges unanimously ruled 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,” finding that “Foyst offers no persuasive rationale for reaching a different result in this situation.”
The decision, which will not become binding until the end of August barring an appeal to the Indiana Supreme Court or a rehearing is sought, is poised to send the case back to a special judge at the trial court level with instructions to declare Bryan Muñoz, the Democratic nominee for the seat, the winner of the 2023 election.
After losing on appeal, Foyst turned to Special Judge Mark Loyd, who presided over the case at the trial court level, filing a motion asking him to pause the appellate court’s decision so that he could “conduct targeted discovery” to determine Muñoz’s residency before and after the 2023 election. Discovery is the process through which lawyers on both sides of a court case share evidence.
In the motion, Foyst alleges that “new information has come to light” regarding Muñoz’s residency, alleging that his opponent rented an apartment at Slate at Fishers District Luxury Villas and Townhomes in Fishers and sold his home in Columbus. 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.
“It is unclear at this time when Bryan Muñoz rented the apartment in Fishers, Indiana,” Foyst 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.”
Loyd, who previously ruled to uphold Foyst’s candidacy, ordered Thomas on Monday to respond to the request within five days.
Two days later, Thomas filed an objection to Foyst’s request, arguing that the lower court does not currently have jurisdiction over the case and that Muñoz’s “eligibility to hold office is simply not part of this case.”
“Because the opinion of the Court of Appeals has not been certified, the (trial) court has no jurisdiction to act upon any motion by either of the parties,” Thomas argues in his objection. “Should the opinion the certified, the trial court retains no jurisdiction to act outside the instructions of the Court of Appeals. …In addition to this court having no jurisdiction in the matter, any action by Mr. Foyst, or anyone else, to challenge Mr. Muñoz’s eligibility to hold office on Columbus City Council … is not germane to this lawsuit. Mr. Muñoz is not a party to this action. No counterclaim, cross claim or defense was raised in this case relating to Mr. Muñoz’s eligibility to appear on the ballot. Mr. Foyst did not seek to join Mr. Muñoz in this action. The time for making such a challenge as part of this case, had there been one, has passed.”
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 or a request for a rehearing.
It is unclear if Foyst plans to appeal to the Indiana Supreme Court. Even if he does appeal the decision, 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.
Muñoz, for his part, told The Republic last 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.”
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.”
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.
