Columbus City Council District 6 candidate Joseph Jay Foyst, from left, watches as attorneys Ross Thomas and and Peter King talk after a pretrial hearing for Thomas’ lawsuit against Foyst and the Bartholomew County Election Board at the Bartholomew County Courthouse in Columbus on Oct. 16.
With just a week-and-a-half before Republican Joseph “Jay” Foyst is set to be sworn in as the councilman for Columbus’ new District 6, a lawsuit challenging his candidacy is still pending before a special judge.
The lawsuit, filed in September by Bartholomew County Democratic Party Chair Ross Thomas, seeks a court order for Foyst to be deemed an ineligible candidate in the Nov. 7 municipal election.
Foyst won the Columbus City Council District 6 seat in the election with 59.5% of the vote, defeating Democrat Bryan Munoz, who received 40.5% of the vote.
Currently, Foyst is set to be sworn in Jan. 1 at 11 a.m. at Columbus City Hall. The outcome of the lawsuit could change the results of the election and give the Democrats a majority on the city council.
Special Judge K. Mark Loyd has been presiding over the case since September after Bartholomew Circuit Court Judge Kelly Benjamin recused herself.
The legal battle over Foyst’s candidacy started this past summer, when Bartholomew County Democratic Party Chair Ross Thomas filed a formal challenge against Foyst, arguing that his candidacy was invalid because the Bartholomew County Republican Party had failed to file its notice for a party caucus with the clerk’s office by the required deadline.
Foyst 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.
The election board upheld the challenge in August, but 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 within 30 days.
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 the lawsuit.
Since then, the case has been delayed on a couple occasions, including one instance when Foyst’s attorney was “out of state on a previously planned vacation,” as well as everyone else in his office, according to court records.
On Nov. 27, Foyst’s attorney asked the special judge to dismiss the lawsuit, arguing that the court no longer has jurisdiction over the matter because Foyst won the election and ceased to be candidate, but rather councilman-elect, according to a motion to dismiss. The motion further states that neither Thomas nor Munoz formally challenged the results of the election.
In the motion, Foyst’s attorney pointed to a provision of the Indiana Code that governs the conditions that must be met to contest election results. The provision states that the losing candidate must file a formal challenge of the results within 14 days after election day, while a party chair can file a formal challenge up to 17 days after election day.
Essentially, Foyst’s attorney argues in court filings that Thomas was required under state statute “to either timely bring a new action or timely amend his pending candidate challenge to an election challenge.”
“When the eligible registered voters in District 6 cast their votes and overwhelmingly elected Jay Foyst to represent them on the Columbus City Common Council, Jay Foyst was no longer a candidate, but rather became Councilman-Elect. Thereafter, Plaintiff chose not to file an election contest and, in doing so, failed to invoke the court’s jurisdiction to challenge Jay’s election,” Foyst’s attorney said in a subsequent court filing on Dec. 8.
Thomas, for his part, responded to the motion to dismiss, noting that the statute cited by Foyst’s attorney states that it “does not apply to a challenge filed before an election the eligibility of a candidate.”
“Nothing in the language of the statute declares that a pending action to determine whether the individual was properly on the ballot in the first place cannot continue beyond election day. …Winning the election did not make the issue raised here — whether Mr. Foyst was eligible to be placed on the ballot after the filing deadline where he had previously been deemed ineligible to appear on the ballot by missing statutory filing deadlines — go away,” Thomas states in his response.
“The defendant can point to no Indiana cases that mandate the dismissal of a challenge to a candidate filed prior to the election simply because the ruling was pushed back after the election. … The results of the election are not the deciding factor here, and there is certainly no requirement that the election mandates the abandonment of a valid claim,” Thomas adds later in his response.
As of Wednesday morning, the lawsuit was still pending before the special judge. And no matter what the special judge decides, the case may continue for some time.
Thomas told The Republic previously that if the special judge rules against him, he will immediately appeal the case, and he expects Foyst would do the same.
