Judge Kelly Benjamin
Mike Wolanin | The Republic
Bartholomew Circuit Court Judge Kelly Benjamin has recused herself from a civil suit filed by the Bartholomew County Democratic Party against a Republican candidate for Columbus City Council.
Democratic Chairman Ross Thomas filed the lawsuit against District 6 candidate Joseph Jay Foyst and the Bartholomew County Election Board on Wednesday. Benjamin’s order of recusal was filed on Thursday, with the judge citing a conflict of interest.
“Pursuant to Trial Rule 79(D) and (H), the parties have 7 days to agree to an eligible special judge,” the order states. “If an agreement cannot be reached, the special judge will be appointed by the Bartholomew County Clerk of Courts as outlined by Trial Rule 79 and Bartholomew County Local Rule LR03-TR79-1.”
In addition to Foyst, Bartholomew County Circuit Court Clerk Shari Lentz, James Holland and Mark Kevitt are also defendants in the case in their official capacities as members of the Bartholomew County Election Board. Thomas wrote that the election board members are included in the case because “in their absence complete relief cannot be accorded to (the) plaintiff.”
The election board is planning a closed session on Monday. According to the meeting notice, the session is being held to discuss strategy regarding “initiation of litigation or litigation which is either pending or has been threatened specifically in writing.”
Assuming that “Clerk of Courts” is synonymous with Lentz’s position, the above order means that the clerk would have to appoint a special judge in a case that she is a defendant in, in the event that the parties to the suit do not reach an agreement in time.
The local court rule cited in the order of recusal states, “In the event a special judge needs to be appointed, and the parties cannot agree to a special judge under Trial Rule 79 (D), or if the selected judge does not accept the case, then under Indiana Rule of Civil Procedure 79 (H), the clerk shall first assign the case to one of the other Bartholomew Court Judges on an equal and rotating basis.”
If no Bartholomew County judge is eligible to serve, the rule provides a list of judicial officers in Brown, Decatur, Jackson and Jennings counties that are eligible for appointment by the clerk of the court. If no judge or magistrate on the list is eligible to serve or if “the particular circumstances in the case so warrant,” the presiding judge in the case would send the matter to the Indiana Supreme Court for the appointment of a special judge.
Thomas said that he chose to file the civil suit after Lentz refused to accept his second challenge to Foyst’s candidacy. Lentz declined to comment.
The suit seeks to have Foyst removed from the upcoming general election ballot.
Foyst, 60, previously a salesman for 25 years and now a dump truck driver, was initially selected as the Bartholomew County Republican Party’s nominee during a party caucus in July. The caucus was convened after no Republican filed to run for the office in the party’s May primary, leaving a vacancy in the Nov. 7 general election.
Thomas initially filed a challenge against Foyst on July 26, arguing that his candidacy was invalid because the Republican party had failed to file its notice for the July caucus with the clerk’s office by the required deadline.
While the election board upheld this challenge, there is a section of Indiana Code that allowed the GOP to fill the subsequent vacancy within 30 days, Lentz said in a previous interview.
The Bartholomew County Republican Party held another caucus for District 6 on Aug. 29, and Foyst was once again selected to fill the vacancy.
However, Thomas argued in his suit that the section of Indiana Code in question would not refer to Foyst.
He wrote that while he attempted to challenge Foyst’s latest filing through a formal complaint to the election board on Wednesday, Lentz refused to accept the challenge, meaning that he has “exhausted all administrative remedies.”
Thomas told The Republic that Lentz said that the deadline to file a challenge was Aug. 25; however, he asserted that this deadline was for filing challenges against candidates who were “rightfully on the ballot” by the original July deadline.
According to the state’s 2023 election calendar, the deadline to file a “sworn statement questioning the validity of a certificate of nomination to fill an early candidate vacancy” with a county election board is noon on Aug. 25. This applies to IC 3-13-1-16.5 and the CAN-1 form for challenges, which is what the Democratic Party used to file its initial challenge against Foyst in July.
The council seat at stake is a new one. City council’s District 6 was recently created due to the city’s decision to adopt second-class status and includes portions of central and north Columbus. The Democratic candidate for District 6 is Bryan Muñoz, who ran unopposed for his party’s District 6 nomination in the primary.
In addition to the new District 6 seat, city voters in November also will elect three at-large members instead of the current two, bringing the total number of city council members up from seven to nine.
The general election is Tuesday, Nov. 7, and the deadline for voter registration is Oct. 10. According to indianavoters.in.gov, early in-person voting will begin on Oct. 16 in Columbus.
