Donald B. Kite, Sr., Appellant-Petitioner,
Alexandra Curlin, Appellee-Respondent.
from the Marion Circuit Court Trial Court No.
49C01-1811-MI-45470 The Honorable Sheryl Lynch, Judge
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
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.
and Procedural History
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.
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.
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).
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
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
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
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
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
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
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
30. Curlin felt like she did her due diligence. Curlin did
not give an incorrect address of where she resided ...