Kite v. Curlin

• Citation: 139 N.E.3d 1113
• Decision Date: 30 December 2019
• Docket Number: Court of Appeals Case No. 19A-MI-51
• Parties: Donald B. KITE, Sr., Appellant-Petitioner, v. Alexandra CURLIN, Appellee-Respondent.
• Court: Indiana Appellate Court

139 N.E.3d 1113

Donald B. KITE, Sr., Appellant-Petitioner,

v.Alexandra CURLIN, Appellee-Respondent.

Court of Appeals Case No. 19A-MI-51

Court of Appeals of Indiana.

Filed December 30, 2019

Attorneys for Appellant: William R. Groth, Fillenwarth Dennerline Groth & Towe, LLC, Indianapolis, Indiana, Kristina Frey, Indianapolis, Indiana

Attorneys for Appellee: Robin C. Clay, Curlin & Clay Law Association of Attorneys, Indianapolis, Indiana, Robin A. Hall, Indianapolis, Indiana

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 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:

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 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.

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.

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.

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.

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

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