COA disqualifies school board member in residency challenge

A lawyer elected to Indianapolis’ Washington Township School Board is ineligible to serve, the Indiana Court of Appeals ruled in an unprecedented decision, disqualifying the elected official because she does not live in the district she was elected to represent in 2018.

The decision for now disqualifies Alexandra Curlin from the Metropolitan School District of Washington Township School Board in what the appellate panel wrote was a precedent that overcomes Indiana Supreme Court rulings disfavoring post-election disenfranchisement of voters.

Curlin in November 2018 unseated incumbent District 2 School Board representative Donald B. Kite Sr., winning just over 51% of the vote in the northern Indianapolis suburban district anchored by North Central High School.

The Marion Circuit Court denied Kite’s petition for election contest, which argued Curlin was ineligible to serve because she lived just south of the district boundary line, but still within Washington Township. The trial court looked for guidance to Indiana Supreme Court precedent involving former Secretary of State Charlie White and other caselaw to determine “Curlin’s ineligibility is at most merely technical,” and therefore, “This Court is not in the position to disenfranchise voters post-election.”

The Indiana Court of Appeals reversed Monday, finding distinctions in Curlin’s case.

“Although Indiana law disfavors post-election removal of candidates who were chosen by the voters, we are unable to overlook the fact that … Curlin remains ineligible for the seat she holds,” the court ruled Monday.

In other cases cited, officials had taken steps to remedy any candidacy issues, the court noted.

“But despite our strong disinclination to overturn the results of an election after the fact, Curlin, unlike the candidates in (White v. Ind. Dem. Party, 963 N.E. 2d 481 (Ind. 2012)), and (Burke v. Bennett, 907 N.E.2d 529 (Ind. 2009)), 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.”

The COA also rejected arguments by Curlin that the residency issue was discoverable pre-election, limiting the ability to challenge the result post-election.

“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,” Judge Paul Mathias wrote for the panel in Donald B. Kite, Sr. v. Alexandra Curlin, 19A-MI-51.

“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,” Mathias wrote. “… Accordingly, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion.”

Curlin’s disqualification raises questions as to how the school board will immediately proceed.

“In terms of the opinion’s immediate impact, that’s entirely dependent on Ms. Curlin,” attorney Bill Groth, who represents Kite, said in an email. “She could announce that she will forgo any further appeal and allow the school board to immediately implement the ruling. Otherwise, the trial court lacks jurisdiction to implement the COA’s opinion until it is certified.

“We do not see any possibility of a special election, as the relevant statutes prescribe that the qualified candidate who received the highest number of votes (Kite) shall be ordered seated,” Groth said.

Indiana Lawyer has reached out for comment to Curlin and her attorneys, Robin C. Clay of Curlin & Clay Law Association of Attorneys and Robin Hall.