Donald B. Kite, Sr. v. Alexandra Curlin ( 2019 )

FILED
Dec 30 2019, 8:36 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
William R. Groth Robin C. Clay
Fillenwarth Dennerline Groth & Towe, Curlin & Clay Law Association of
LLC Attorneys
Indianapolis, Indiana Indianapolis, Indiana
Kristina Frey Robin A. Hall
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald B. Kite, Sr., December 30, 2019
Appellant-Petitioner, Court of Appeals Case No.
19A-MI-51
v. Appeal from the Marion Circuit
Court
Alexandra Curlin, The Honorable Sheryl Lynch,
Appellee-Respondent. Judge
Trial Court Cause No.
49C01-1811-MI-45470
Mathias, Judge.
[1] Donald B. Kite, Sr. (“Kite”) appeals the order of the Marion Circuit Court
denying his petition for an election contest in which he claimed that Alexandra
Curlin (“Curlin”) was ineligible to hold the seat on the school board to which
she was elected. On appeal, Kite claims that Curlin does not reside in the
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district she was elected to represent and is therefore statutorily ineligible for the
school board seat. Curlin argues that her residency, and therefore her
ineligibility, was discoverable prior to the election and that Kite’s post-election
challenge is untimely. Because we agree with Kite that Curlin continues to be
ineligible for the seat she holds, we reverse and remand.
Facts and Procedural History
[2] In 2015, the school board (“School Board”) of the Metropolitan School District
of Washington Township (“MSDWT”) adopted a plan (the “2015 Plan”)
regarding the organization and composition of the School Board. The 2015
Plan provided that two members of the School Board would be elected at-large,
but “preserve[d] the current and historical practice of board members elected by
and representing all MSDWT voters without concentration of a majority of the
Board from just one geographical area (residence district)[.]” Ex. Vol., Joint Ex.
1, p. 2. The 2015 Plan also provided that any candidate for a seat representing a
residence district must have lived in that district “for a period of time in excess
of one (1) year prior to the date of the general election on which the candidate’s
name appears on the ballot for election[.]” Id. at p. 3–4.
[3] MSDWT is divided into three geographic residence districts. Areas south of
75th Street between Spring Mill Road and College Avenue are within MSDWT
Residence District 1, and areas north of 75th Street between Spring Mill Road
and College Avenue are within MSDWT Residence District 2.The following
diagram is based on the exhibits submitted by the parties and is offered as a
visual aid to the reader:
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See Ex. Vol., Petitioner’s Ex. B. It is undisputed that Kite has lived in District 2
for more than one year prior to the election at issue. Curlin resides at 7431
North Meridian Street, which is between Spring Mill Road and College
Avenue, but three houses south of 75th Street. It is undisputed that Curlin
therefore resides in District 1.
[4] Kite was the incumbent representing District 2. On August 23, 2018, Curlin
filed a “Petition of Nomination and Consent for School Board Office Elected in
2018,” State Form CAN-34, so that she could run against Kite for the seat
representing District 2. Id., Joint Ex. 6. In this form, Curlin correctly listed her
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address as 7431 North Meridian Street. Although she listed her correct address,
which lies within District 1, she indicated that she was seeking the seat
representing District 2. In this form, Curlin incorrectly certified that she
“meet[s] all qualifications for this office, including residency requirements[.]” Id.
(emphasis added).
[5] The election was held on November 6, 2018. Curlin received 14,723 votes, and
Kite received 13,946 votes. The election results were certified, and Kite did not
request a recount. However, the day after the election, while the votes were still
being counted, Kite was informed that Curlin did not live in District 2.
Accordingly, on November 15, 2018, nine days after the election, Kite filed a
verified petition to contest the election on grounds that Curlin filed for and
sought the District 2 seat even though she lived in District 1. Kite’s petition
claimed that Curlin was therefore ineligible to run for election or be seated as a
District 2 School Board member, because she did not meet the residency
requirement.
[6] The trial court held a hearing on Kite’s petition on December 11, 2018. A week
later, pursuant to Kite’s request under Trial Rule 52, the trial court issued
findings of fact and conclusions of law providing in relevant part:
4. The defined residence districts are . . . depicted in a map that
is posted on MSDWT’s website and on the Marion County
Election Board (“MCEB”) website . . . although the maps posted
on the MCEB’s website . . . and the MSDWT’s website are of
different levels of clarity.
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5. The written descriptions of the MSDWT residence District
boundaries which accompany the map on the MSDWT website
describes boundaries which make residences north of 75th street
between Spring Mill and College fall into residence District 2 and
residences south of 75th street between Spring Mill and College
fall into residence District 1. Because Respondent Alexandra
Curlin (“Curlin”) lives south of 75th Street between Spring
Mill and College, she resides, as she testified during the
hearing in this matter, in residence District 1.
6. Curlin met with Kite, the District 2 incumbent, around July
15, 2018 to discuss her running for MSDWT School Board.
Curlin contacted Kite to meet. Kite asked Curlin where she lived.
Curlin said District 2 at 75th and Meridian Street but did not give
Kite her specific address of 7431 N. Meridian Street.
7. Kite advised Curlin she could run for the seat in District 2 or
for an At Large seat for MSDWT School Board.
8. Kite and Curlin texted several more times after their initial
meeting. Kite even texted Curlin to see if she decided what seat
to run for.
***
15. Both at the time Curlin filed her candidacy and up to the
present, Curlin has resided at 7431 N. Meridian Street,
Indianapolis, IN 46260 since 2012. In fact, Curlin stated in her
CAN-34 she resided at 7431 N. Meridian Street, Indianapolis, IN
46260. Curlin’s CAN-34 form was a public record since received
by the MCEB August 24, 2018.
16. Kite agreed the CAN-34 form is a public record.
17. However, as discovered by Kite, and as acknowledged by
Curlin in her sworn testimony, Curlin’s address is actually within
residence District 1 boundaries, rather than in residence District
2.
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18. However, at the time of filing her candidacy documents,
Curlin, relying on her interpretation of the MSDWT’s district
map, believed that she did in fact live in residence District 2.
19. Kite filed this contest action under Ind. Code [chapter] 3-12-
8, alleging that Curlin was ineligible to seek or occupy the office
of MSDWT Board of Education member in residence District 2
because she did not meet the statutory residency requirement to
either run or to serve as a member in residence District 2, and
because seating her would violate Indiana Code § 20-23-4-
27(c)(3) and the 2015 Restated Plan (“Plan”) which requires that
no more than two (2) members live in any one residence district,
and that each district have at least one member.
20. Kite discovered the day after the November 6, 2018 election
after someone told him, Curlin did not reside in District 2 while
the votes were still being counted.
21. Kite did not investigate his opponent Curlin’s eligibility to
run in District 2 as she was an attorney and he relied on what she
told him when they met before she filed her CAN-34 on August
24, 2018. Both Kite and Curlin are attorneys.
22. Kite knows campaign reports are on the MCEB website with
candidate’s addresses, but someone in his campaign looked at
Curlin’s campaign reports. Kite did not.
23. Kite was aware of Curlin’s CAN-34 form as candidates look
to see who stands by the opponent as they are curious.
24. Kite’s campaign maintained a Facebook page. Kite’s
campaign was in control of the Facebook [page]. Kite’s Facebook
demonstrates his campaign investigated Curlin with his
accomplishments and information on Curlin’s background.
25. Kite agreed the things on his campaign Facebook [page]
about Curlin were to educate the voters about Curlin. Kite
checked the Facebook [page] frequently.
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26. Curlin relied on the MSDWT website map to decide she was
in District 2 which did not have street lines. Curlin did not look
at the MCEB website map before filing her CAN-34 form.
27. Curlin’s house is less than half of a football field from 75th
street where the line of District 2 is located.
28. Curlin believed she resided in District 2 when she filed her
CAN-34 form. She had consulted with Kite and others including
the MCEB staff when she filed her CAN-34 form. Curlin did not
consult the MSDWT attorney before filing her CAN-34.
29. Curlin was aware that she could run for an At Large seat and
a District 2 seat as she thought she resided in District 2.
30. Curlin felt like she did her due diligence. Curlin did not give
an incorrect address of where she resided on the CAN-34 form.
31. Curlin believed she signed the CAN-34 form to be accurate
and true.
32. Curlin discovered she lived in District 1 instead of District 2
after the election when MSDWT’s attorney gave her the heads
up of Kite’s Petition to Contest Election.
33. Curlin at hearing acknowledged she knows now that she
does not reside in District 2.
34. The Court finds Curlin credible stating that she had no intent
to deceive voters or commit fraud as she put her correct address
on the CAN-34 form.
35. All Washington Township voters vote for all MSDWT
School Board Members regardless of what district they reside in.
The MSDWT School Board Members represent the entire
MSDWT.
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CONCLUSIONS OF LAW
1. It is undisputed that Curlin’s address does not fall within
residence District 2 and is in fact in residence District 1.
2. Both Curlin and Kite maintain that they were unaware of the
fact that Curlin was ineligible to run for the District 2 seat under
both Indiana Code § 20-23-4-27(c)(3) and the Plan until after the
election on November 6, 2018.
3. Thus, the issue this Court must weigh is whether Indiana
Code § 20-23-4-27(c)(3) is controlling even post-election after the
voters have spoken.
4. Indiana law strongly disfavors post-hoc disenfranchisement of
voters. The Indiana Constitution guarantees that “[a]ll elections
shall be free and equal.” Ind. Const. art. 2, § 1. “Consistent with
this guarantee, the Indiana Supreme Court has always been wary
of overturning the will of the voters who have freely and willingly
cast their ballots.” See, e.g., Burke v. Bennett, 907 N.E.2d 529 (Ind.
2009), White v. Indiana Democratic Party ex rel. Parker, 963 N.E.2d
481 (Ind. 2012).
5. Courts liberally construe the statutes governing post-election
contests “‘in order that the will of the people in the choice of
public officers may not be defeated by any merely formal or
technical objections.’” Pabey v. Pastrick, 816 N.E.2d 1138, 1148
(Ind. 2004) (quoting Tombaugh v. Grogg, 146 Ind. 99, 103, 44
N.E. 994, 995 (1896)).
6. Because the five (5) MSDWT Board members, who hold seats
from different residence districts to promote “geographic
diversity”, still serve the entire MSDWT area as a whole and are
elected by the Washington Township residents as a whole, not by
district, it can be argued that the resident requirement is a mere
formal or technical issue when weighed against the
disenfranchisement of voters.
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7. The alternative, as argued by Kite is for the Court to conclude
the District 2 position is vacant, and apply Article 15, Section 3
[of the Indiana Constitution], which states that when an elective
term ends and no qualified person has been elected and qualified
to take over the duties of the office, the person holding that office
at the end of the elective term has a right and duty to hold the
office and discharge his duties for an additional term until the
next general election for that office. Patterson v. Dykes, 804 N.E.2d
849, 853–54 (Ind. Ct. App. 2004)
8. However, the facts of the Dykes case and the subsequent case
law relied on by Kite in drawing this conclusion do not apply in
this instance. The 2004 Dykes case does not discuss
disenfranchisement of voters. Not to mention the Dykes case is an
Indiana Court of Appeals case and not an Indiana Supreme
Court case.
9. In Dykes, the unsuccessful incumbent sought declaratory
judgment, preliminary injunction and summary judgment that
the councilman-elect was ineligible to hold office because of a
prior felony conviction. This is not the case herein.
10. Here, there has been no fraud or felony committed by
Curlin. Rather, Curlin’s ineligibility is at most merely
technical. Curlin ran for a seat in the incorrect district and gave
her correct address on the CAN-34, but each MSDWT School
Board Member serves the entire Washington Township area and
not only their district. Furthermore, all MSDWT School Board
Members are voted on and elected by the entire Washington
Township residents and not by the district.
11. No evidence of fraud or bad faith has been presented to
show that Curlin submitted her candidacy for the District 2 seat
with an intent to defraud or mislead voters.
12. This Court cannot rely on the 2004 Indiana Court of Appeals,
Dykes case.
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13. In White v. Ind. Dem. Party, 963 N.E. 2d 481 (Ind. 2012),
(“White Case”) the Court concluded that “the Code places a
burden on political campaigns to investigate and vet their
opposition before the pre-election time limitations expire, but
that is better than the alternative: that a challenger might ignore a
known (or knowable) disqualification challenge before the
election, wait to see who won at the polls, and then seek to set
aside the results of the democratic process. Such a result is
inconsistent with free elections and respect for voters’ expressed
preferences.[”]
14. Curlin included her correct address on the CAN-34, which
was a matter of public record before the election and remains
public record today. Kite was aware of Curlin’s area of address
during the campaign before the election.
15. Even though Kite did conduct opposition research on
Curlin, he did not disclose that her address fell in residence
District 1 until after Curlin won the election. Absent proof that
“the voters willfully threw away their ballots on a candidate they
knew could not lawfully be elected, the mere fact that the one
who received the largest vote was ineligible to be elected . . . is
not enough to give the candidate who received the less number
the right to the office.” Burke at 533 (Ind. 2009) citing State ex rel.
Heston v. Ross, 84 N.E. 150–151 (1908).
16. The knowledge of the ineligibility of a candidate must be
such on the part of those voting for him as to imply a willfulness
in acting and voting in defiance of the law and in opposition to
such knowledge, in order to nullify such votes without nullifying
all votes “equally” at the same time. Oviatt v. Behme, 147 N.E. 2d
897, 901 (Ind. 1958). “It is a serious matter under our system of
government to deprive one of an office for which he has received
the highest number of votes.” Id. “The constitutional provision
that ‘all elections shall be free and equal’ means that ‘the vote of
every elector is equal in its influence upon the result to the vote of
every other elector.’” Id.Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019 Page 10 of 27
17. It is clear that Kite was aware of Curlin’s potential run in
District 2 as early as mid-July 2017 [sic, read 2018]. Not to
mention, Curlin filed her CAN-34 received by the MCEB August
24, 2018 that was a public form that Kite could have verified his
opponent’s residence requirement as he advised Curlin she could
run in District 2 or the At Large seat.
18. Curlin should have reviewed the MCEB website map to
determine what seat she could run for in the November 6, 2018
MSDWT School Board Election. In the same manner, Kite
should have investigated his opponent Curlin per the “White
Case” to see if she was eligible and qualified to run against him
as the incumbent for his 4th term before the election on
November 6, 2018.
19. Kite’s incumbent campaign investigated Curlin as evidenced
on Facebook with other issues, but failed to investigate and vet
his opponent Curlin’s residency requirement before the pre-
election time limitations expired despite knowing he has a
potential opponent as early as mid-July 2018.
20. Instead Kite in the alternative ignored investigating his
opponent Curlin’s residency which was public record and known
for sure August 24, 2018 when Curlin filed her CAN-34 with the
MCEB. Kite waited to see who won at the polls and then sought
to essentially set aside the results of the democratic process when
he filed his Verified Petition to Contest Election filed November
15, 2018. The election was November 6, 2018.
21. The Indiana Supreme Court has addressed post-election
challenges. Disfranchisement of voters is discouraged.
22. 51.36% of Washington Township voters voted for Curlin
without knowing she did not reside in District 2.
23. This Court is not in the position to disenfranchise voters
post-election.
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Appellant’s App. pp. 9–18 (italics in original, bold emphases added). The trial
court therefore denied Kite’s petition, and Kite now appeals.
Standard of Review
[7] Where a trial court enters specific findings and conclusions, we apply a two-tier
standard of review: we first determine whether the evidence supports the
findings, and then we determine whether the findings support the judgment.
Marion Cty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 216 (Ind. 2012). We
will “‘not set aside the findings or judgment unless clearly erroneous.’” Id.(quoting Ind. Trial Rule 52(A)). We review the trial court’s legal conclusions de
novo. Id. at 217. Here, Kite generally accepts the trial court’s findings,1 and
argues only that the trial court misapplied the law. Thus, our review is de novo.
See id.
I. The Statutory Scheme Permits Post-Election Challenges to the
Eligibility of a Candidate
[8] Kite first argues that the trial court erred by concluding that he could not
challenge Curlin’s eligibility after the election. Kite correctly notes that the
applicable statutory scheme clearly permits such post-election challenges.
Specifically, Indiana Code chapter 3-12-8 contains several provisions setting
1
In a footnote to his brief, Kite argues that the trial court clearly erred in concluding that he “‘in the
alternative ignored investigating his opponent Curlin’s residency’ and waited to see who won at the polls and
then sought to essentially set the election aside.” Appellant’s Br. at 13 (quoting Appellant’s App. p. 11). Kite,
however, does not argue that this allegedly erroneous conclusion requires reversal.
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forth the procedure for post-election challenges to a school board member’s
eligibility.
[9] The first section of this chapter provides that, subject to exceptions not
applicable here,2 “[a]ny candidate for nomination or election to a local or
school board office may contest the nomination or election of a candidate who
is declared nominated or elected to the office.” Ind. Code § 3-12-8-1(b). The
second section of this chapter states that an election may be contested under
section 1 if a petitioner alleges that one of the several circumstances exist,
including that “the contestee was ineligible[.]” Ind. Code § 3-12-8-2. Such a
contest must be filed in the local circuit court “no later than noon fourteen (14)
days after election day.” Ind. Code § 3-12-8-5. The petition to contest the
election must state inter alia:
(3) That the petitioner in good faith believes that one (1) or more
of the following occurred:
(A) The person declared nominated or elected does not
comply with a specific constitutional or statutory
requirement set forth in the petition that is applicable to a
candidate for the office. . . .
Ind. Code § 3-12-8-6(a).
2
These exceptions apply to a candidate who (1) receives the most votes in a primary election; and (2) is
certified as deceased. Ind. Code § 3-12-8-1(b).
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[10] Once the relevant parties and the local election board have been served, Ind.
Code § 3-12-8-8, and the candidate challenged in the petition files an answer,
Ind. Code § 3-12-8-10, the trial court must hold a hearing on the petition. Ind.
Code § 3-12-8-17. If the trial court determines that the contestee is ineligible,
then the court “shall declare as elected or nominated the qualified candidate
who received the highest number of votes and render judgment accordingly.”
Id. at § 17(c). If the trial court declares the winning candidate is ineligible and
that the eligible candidate who received the most votes is therefore elected, it
must certify its determination to the county election board and if applicable, the
election division and governor. Ind. Code § 3-12-8-18. If the challenger is
successful, the person then in possession of the office “shall vacate the office”
upon “demand of a person receiving a . . . certificate of election issued
following the certification under section 18[.]” Ind. Code § 3-12-8-21. It is
therefore clear that Indiana Code chapter 3-12-8 permits a post-election contest
to the eligibility of a candidate who won the office.
II. Curlin Was Not an Eligible Candidate for the District 2 Seat to Which
She was Elected
[11] Kite also correctly notes that Curlin was not an eligible candidate for the
District 2 seat to which she was ultimately elected. The trial court did not find
otherwise. Indeed, it is undisputed that Curlin did not reside in District 2. Nor
is there any evidence that she moved or planned to move into District 2.
Indiana Code section 3-8-1-34(b) clearly provides that, for “a candidate for
school board office seeking to represent an election district that consists of less
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than the entire school corporation,” “[t]he candidate must have resided in the
election district for at least one (1) year before the election.” (emphasis added).
The 2015 Plan adopted by MSDWT incorporated this requirement by stating
that a candidate for a seat representing a residence district must have lived in
that district “for a period of time in excess of one (1) year prior to the date of the
general election on which the candidate’s name appears on the ballot for
election[.]” Ex. Vol., Joint Ex. 1 pp. 3–4. Thus, Curlin was clearly ineligible for
the District 2 seat on the School Board.
[12] We further note that MSDWT’s 2015 Plan provides that
Three (3) of the five (5) Board Members must reside within and
run for a board position from those three geographically limited
residence districts with one member elected from each such
residence district. The other two (2) Board Member positions
will be elected from the at-large district comprising of the entire
territory of MSDWT, provided, however, both of the at-large seat
Board Members may not reside within the same geographically
limited residence district.
Id. at 3 (emphases added). Thus, the 2015 Plan provides for geographic
diversity among the members of the School Board.
[13] This provision of the 2015 Plan mirrors similar provisions meant to ensure
geographic diversity among school board members that are set forth in the
applicable statutes. Indiana Code section 20-23-4-27(b) provides that an elected
school board shall be elected in accordance with one of six methods set forth in
Subsection 27(c). The method chosen by MSDWT is that listed in Subsection
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27(c)(3): dividing the school corporation into three residence districts of
approximately equal population. See Ind. Code § 20-23-4-27(c)(3); Ex. Vol,
Joint Ex. 1. If the school board consists of five members, as the MSDWT
School Board does, then no more than two members may reside in any one
residence district. Ind. Code § 20-23-4-27(c)(3)(B).3
[14] Here, the trial court found, and the parties do not dispute, that the School
Board consists of five members, two of whom are elected as at-large candidates,
and the other three from the three residential districts. District 1 is represented
by Wanda Thurston, who resides in District 1 and was re-elected in 2016;
District 3 is represented by Tony Dzwonar, who resides in District 3 and was
re-elected in 2016; one at-large seat is held by Bill Turner, who was re-elected in
2018 and resides in residence District 1, and the other at-large seat is held by
John Fencl, who was elected in 2016 and resides in District 3. As Curlin lives in
District 1, there are currently three members of the School Board who reside in
District 1 and none who live in District 2, contrary to the legislative intent
favoring geographic diversity on school boards.
3
Literally, Subsection 27(c)(3)(B) provides that, if a three-district school board consists of five members, then
“two (2) members may not reside in any one (1) residence district.” This is an obvious drafting error. If a
school board has five members and three geographical residence districts, with three members elected from
the residence districts and two at-large members, then two members must, by mathematical necessity, reside
in one residence district. “We are required to determine and effect the legislative intent underlying the statute
and to construe the statute in such a way as to prevent absurdity and hardship and to favor public
convenience.” Livingston v. Fast Cash USA, Inc., 753 N.E.2d 572, 575 (Ind. 2001). Here, the legislative intent
for geographic diversity is obvious. We therefore construe Subsection 27(c)(3)(B) to mean that, if a school
corporation is divided into three residence districts and has a five-member school board, then no more than two
members may reside in any one residence district.
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[15] We additionally note that Indiana Code section 20-23-4-29.1(e) states that, if a
school corporation plan provides that all members of the school board are to be
elected by all the voters in the corporation, then the candidates shall be placed
on the ballot by residence district. “The ballot must state the number of
members to be voted on and the maximum number of members that may be
elected from each residence district as provided in the plan.” Id. Generally,
“[t]he candidates who receive the most votes are elected.” Id. If, however,
“more than the maximum number [of candidates] that may be elected from a
residence district are among those receiving the most votes, the candidates from
the residence districts exceeding the maximum number who receive the fewest
votes shall be eliminated in determining the candidates who are elected.” 4 Id.[16] Thus, our General Assembly has expressed its intention to prioritize the
geographic diversity of the composition of a school board over seating the
candidate who received the most votes if the election of a candidate dilutes or
destroys the geographic diversity of the board. Yet, with Curlin on the
MSDWT School Board, there are now three of five members who reside in
District 1: Thurston, Turner, and Curlin, who, contrary to the clear statutory
eligibility requirement that a candidate for the District 2 seat reside in District 2,
resides instead in District 1. This leaves the School Board without the
4
This last provision was added in apparent response to our opinion in Campbell v. Board of School
Commissioners of the City of Indianapolis, 908 N.E.2d 1234, 1240 (Ind. Ct. App. 2009), in which we held that a
statutory provision that defined the winning candidate for school board as the one who received the most
votes controlled over a conflicting provision that prohibited two members residing in the same residential
district.
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geographic diversity required by the 2015 Plan and clearly intended by the
General Assembly.
[17] Again, the trial court did not conclude that Curlin was eligible to hold the seat
representing District 2. The outcome of this case would therefore seem to be
simple: Curlin was an ineligible candidate due to her residency in District 1,
and Kite brought a statutorily authorized post-election challenge to her
eligibility wherein it was clearly established that Curlin was an ineligible
candidate. The trial court, however, concluded that it could not unseat Curlin
despite her ineligibility based on controlling precedent from our supreme court.
We therefore turn our attention to this precedent.
III. Precedent Disfavors Post-Election Disenfranchisement
[18] Our supreme court has held that Indiana law strongly disfavors “post-hoc
disenfranchisement of voters,” writing:
The Indiana Constitution guarantees that “[a]ll elections shall be
free and equal.” Ind. Const. art. 2, § 1. Consistent with this
guarantee, this Court has always been wary of overturning the
will of the voters who have freely and willingly cast their ballots.
See, e.g., Burke v. Bennett, 907 N.E.2d 529 (Ind. 2009) (“This
application of the Indiana disqualification statute is consistent
with the longstanding respect for the right of the people to free
and equal elections . . . and the reluctance of this Court to
remove from office a person duly elected by the voters.”). We
liberally construe the statutes governing post-election contests
“‘in order that the will of the people in the choice of public
officers may not be defeated by any merely formal or technical
objections.’” Pabey v. Pastrick, 816 N.E.2d 1138, 1148 (Ind. 2004)
Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019 Page 18 of 27
(quoting Tombaugh v. Grogg, 146 Ind. 99, 103, 44 N.E. 994, 995
(1896)).
Even where facts are alleged that might if later proven render a
candidate ineligible, “[t]he existence of the fact which
disqualifies, and of the law which makes that fact operate to
disqualify, must be brought home so closely and so clearly to the
knowledge or notice of the elector, as that to give his vote
therewith indicates an intent to waste it.” Oviatt v. Behme, 238
Ind. 69, 74, 147 N.E.2d 897, 900 (1958) (quoting People ex rel.
Furman v. Clute, 50 N.Y. 451 (1872)). Those voters who are
lawfully qualified to participate in our democratic process “may
not be disenfranchised except by their own willful or deliberate
act to the extent that one who did not receive the highest vote
cast may still be declared elected.” Id. at 74–75, 147 N.E.2d at
900.
White v. Indiana Democratic Party ex rel. Parker, 963 N.E.2d 481, 486 (Ind. 2012)
(emphasis added).
[19] Relying on the above-emphasized language, the trial court determined that
Curlin’s ineligibility for the District 2 seat was merely a “technical” issue and
that unseating Curlin would improperly disenfranchise the electorate who voted
for Curlin. We agree with Kite that the question of whether a candidate is
ineligible for office due to her failure to meet a residency requirement is not a
mere formal or technical objection.
[20] As discussed infra in more detail, the White court cited this “technicality”
language in addressing a challenge to a candidate’s residency, but the court
ultimately held that the candidate, at the time of the post-election challenge,
was eligible. Thus, White did not hold that a candidate’s ineligibility based on
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residency was a formal or technical objection. 963 N.E.2d at 488. And in the
case cited in White in support of this proposition, the issue was not one of the
eligibility of a candidate. See Pabey, 816 N.E.2d at 1149 (considering whether
there had been deliberate acts that made it impossible to determine the
candidate who received the highest number of votes). In contrast, the cases
cited in Pabey did deal with technical, procedural objections. See Tombaugh, 146
Ind. 99, 44 N.E. at 995 (rejecting appellee’s argument that board of
commissioners did not have jurisdiction because it failed to meet at the time
fixed by the auditor); see also Hadley v. Gutridge, 58 Ind. 302, 309 (1877)
(addressing appellee’s argument that service of process was insufficient).
[21] Our research has revealed no Indiana case that has held that a candidate’s
residency, as it pertains to his or her eligibility for office, is a “mere
technicality.” Instead, we agree with the Supreme Court of Kansas that, given
“the importance of geographical representation on school boards, expressed
through the complex scheme for school board makeup precisely set forth in the
statutes,” “[d]isqualification by nonresidency, continuing and not corrected at
any stage by the candidate,” is not a technical irregularity. In re Massey, 605
P.2d 147, 150 (Kan. 1980). Instead, here, residency is a fundamental eligibility
requirement to hold the office.
[22] Unlike the trial court, we do not think that a contrary result is mandated by
White. In that case, the challenged candidate, Charlie White, ran for and was
eventually elected to the office of Indiana Secretary of State as a member of the
Indiana Republican Party. After White was elected to this office, the chairman
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of the Indiana Democratic Party filed a petition with the Indiana Recount
Commission, seeking to contest the results of White’s election, alleging that
White was not qualified to assume the office of Secretary of State because he
was not registered to vote at the address where he resided as of July 15, 2010—
the deadline for the Republican Party to file its certificate of nomination—in
accordance with the applicable statute. The Recount Commission determined
that White was eligible, but the trial court reversed and ordered the
Commission to declare White’s opponent as the Secretary of State. The
Commission and White appealed, and our supreme court granted transfer of
jurisdiction to that court.
[23] The White court noted that the Democratic Party could not have brought its
claim in the period after the May 2010 primary election because several months
remained before the expiration of the period for White to comply with the
statutory residency requirement. 963 N.E.2d at 487. The question before the
court was therefore whether the challenge to White’s eligibility was permissible
under the post-election challenge statute or whether it was untimely because it
could have been brought earlier under the pre-election challenge statutes. Id.
[24] The White court held that the language of the statutes at issue spoke in the
present tense, which suggested that a claim to the eligibility of a candidate must
be “analyzed at the time that the [challenge] is brought.” Id. at 488 (citing Ind.
Code § 3-12-11-3(b)(4)(A) (permitting a post-election challenge to a winning
candidate if the winner “does not comply with a specific constitutional or
statutory requirement set forth in the petition that is applicable to a candidate
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for the office.”). The Democratic Party sought to read the statute as permitting
a challenge when the challenged candidate “did not” comply. Id. The White
court noted, however, that unlike other sections regarding a challenge to a
candidate’s eligibility, this subsection “was not written to encompass a past-
tense violation—only a current and ongoing one.” Id. (citing Ind. Code §§ 3-12-
11-3(b)(4)(B) (“A mistake was made”), -3(b)(4)(C) (“A mistake occurred”), -
3(b)(4)(D) (“An electronic voting system malfunctioned”), -3(b)(4)(E) (“A
deliberate act or series of actions occurred”)). Id. at 488–89.
[25] The statutory eligibility requirement at issue in White was concerned with the
current status of the candidate, providing that “‘[a] person is not qualified to run
... unless the person is registered to vote in the election district the person seeks to
represent.’” Id. at 489 (quoting Ind. Code § 3-8-1-1(b)). This contrasted with
other disqualifying provisions aimed at past conduct. Id. (citing Ind. Code § 3-8-
1-5(c)(1) (disqualification if “the person gave or offered a bribe, threat, or
reward to procure the person’s election”), -5(c)(3) (disqualification for felony
convictions), -5(c)(4) (disqualification if “the person has been removed” from
office)).
[26] Accordingly, the White court held that, “when the challenge was filed post-
election[,] White was correctly registered at his place of residence—[his]
condo—in the election district he sought to represent—i.e., the State of
Indiana.” Id. (emphasis in original). The court further observed that the statutes
governing pre-election filings provide for an express procedure through which a
voter may challenge the validity of those filings within the time limits for pre-
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election challenges. Id. (citing Ind. Code § 3-8-1-2 (2005)). None of White’s
filings were confidential or sealed, and the discrepancy at issue was discovered
by a private citizen. Id. The court therefore concluded that “the exercise of
more due diligence by the Democratic Party might have made a pre-election
challenge possible.” Id.[27] The White court noted that its holding placed a burden on political campaigns
to investigate and vet opponents before the pre-election challenge time limits
expire, but concluded that this was “better than the alternative: that a challenger
might ignore a known (or knowable) disqualification challenge before the
election, wait to see who won at the polls, and then seek to set aside the results
of the democratic process. Such a result is inconsistent with free elections and
respect for voters’ expressed preferences.” Id. Because the allegations regarding
White’s qualifications arose before the election and were made public, the court
concluded that it was “likely that the average voter was aware that there were
concerns about White’s voter registration history at the time of the election, but
we will not, on the basis of the present petition, judicially disenfranchise voters
who went to the polls aware of what were at that moment only allegations.” Id.
at 490.
[28] In support of its holding, the White court relied on Burke v. Bennett, 907 N.E.2d
529 (Ind. 2009). That case involved a post-election challenge alleging that the
winning candidate for the office of mayor of Terre Haute, Indiana could not
assume the office because his prior job was connected with activities financed in
part by the federal government, which is forbidden under the federal “Little
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Hatch Act,” and also acts as a disqualification under the Indiana election
statutes. Id. at 530–31 (citing 5 U.S.C. § 1502; Ind. Code § 3-8-1-5(c)(6)). At the
time the winning candidate assumed office, however, he was no longer
employed in his prior position. Id. at 532. The trial court rejected the challenge,
and on transfer to our supreme court, the court affirmed. Id. at 533.
[29] The Burke court held that a disqualification challenge for a Little Hatch Act
violation could properly be brought before or after the election—but “[t]he
point in time at which the statute’s disqualifiers are to be assessed depends upon
whether the challenger is using the statute to prevent another person from being
a candidate or from assuming office.” Id. at 532. Regardless of whether there
was a pre-election challenge or a post-election challenge, the language of the
disqualification provisions at issue in Burke “focuse[d] on current or prospective
status as the basis for disqualification,” whereas “several of the statute’s other
provisions clearly refer[red] to a person’s past conduct as grounds for
disqualification.” Id. Thus, the winner’s change in employment after assuming
office was dispositive. Id.[30] The Burke court viewed the question not as “whether a successful candidate was
subject to the [Little Hatch] Act or had been in violation of it when the candidate
became or remained a candidate, but “whether the election winner is subject to
the Act and whether he would violate it by becoming or remaining a candidate.”
Id. (emphasis in original). Because this question necessarily required proof that
a person “would, in the future, violate the Act by becoming or remaining a
candidate,” the Burke court held that “this disqualifier is inapplicable to
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establish ineligibility in a post-campaign election contest” because from the
time the challenge was filed until the date of assumption of office, the defendant
was no longer a candidate. Id. From the undisputed facts of that case, it was
simply impossible to find that the winner “is subject to” and “would violate” the
Little Hatch Act by “becoming or remaining” a candidate. Id. (emphasis in
original). The Burke court acknowledged that its holding would restrain
application of the Little Hatch Act in post-election contests, but not in pre-
election challenges. Id.[31] The trial court here, citing White, concluded that because Curlin’s ineligibility
was discoverable prior to the election, a post-election challenge was untimely.
Although there is language in White supporting this conclusion, and we
understand why the trial court relied thereon, we believe that the facts of White,
and the facts of Burke on which the White court relied, are distinguishable from
the facts of the present case.
[32] As set forth above, in both White and Burke, the disqualifications at issue had
ceased to exist by the time the winning candidate had been elected and assumed
office. Curlin, in contrast, was and continues to be ineligible for the office she
now holds. We do not read White or Burke as prohibiting a post-election
challenge to the continued ineligibility of a candidate simply because the
ineligibility could have been discovered prior to the election.
[33] Certainly, it would have been preferable if Curlin had realized her ineligibility
by looking at what are rather straight-forward descriptions and maps showing
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that Curlin clearly did not and does not live in District 2. Had Curlin not made
such a fundamental mistake, we would not be faced with the current
controversy. Of course, as noted by the trial court, the same is true of Kite, who
could have easily looked at Curlin’s address in her publicly available election
filings, compared this with the relatively clear district map, and discovered that
Curlin was ineligible. Had he done so, he could have made a pre-election
challenge to Curlin’s candidacy. Indeed, neither party, both of whom are
attorneys, did what they should have done.
[34] But despite our strong disinclination to overturn the results of an election after
the fact, Curlin, unlike the candidates in White and Burke, remains statutorily
ineligible for the seat that she currently holds. To hold that Kite cannot now
challenge Curlin’s current eligibility would be to effectively read the post-
election challenge statutes out of the Indiana Code. We do not believe this was
the intent of our supreme court in White or Burke, where the disqualifications
were not continuing.
Conclusion
[35] It is undisputed that Curlin does not reside in District 2. Nevertheless, Curlin
ran for, and was elected to a seat on the School Board representing District 2.
Under the applicable statutes, she is ineligible to hold the seat she currently
holds. This ineligibility, although discoverable prior to the election, was not
discovered until after the election. Although Indiana law disfavors post-election
removal of candidates who were chosen by the voters, we are unable to
overlook the fact that, unlike the candidates in Burke and White, Curlin remains
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ineligible for the seat she holds. Accordingly, we reverse the trial court’s
judgment and remand for proceedings consistent with this opinion.
[36] Reversed and remanded.
Robb, J., and Pyle, J., concur.
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