A lawyer for Kokomo Common Council President Bob Hayes has questioned whether a challenge of Hayes’ candidacy meets the legal requirements to garner a hearing before the Howard County Election Board.
Manny Herceg, an Indianapolis attorney with Taft Stettinius & Hollister LLP, spoke Wednesday at an election board meeting, citing concerns with the wording of a candidate challenge filed last week.
The challenge, initiated by Kokomo resident Josh Layton, alleges that Hayes’ "primary residency may not be Howard County.” Property records attached to the challenge show Hayes and his wife as the owners of a home in Osceola.
Hayes, who works at Delphi and is seeking re-election to his at-large seat, lists a separate, Kokomo address in his candidate filing records and told the Tribune in a previous interview that he has “been a lifelong resident of Kokomo for 67 years.”
Meanwhile, Herceg believes the challenge “doesn’t even meet the basic requirements of the statute.”
He pointed to state code that says a challenger, in their sworn statement filed with the election board, “must question the eligibility of the candidate to seek the office and set forth the facts known to the voter concerning this question.”
Herceg noted that Layton, in his challenge of Hayes’ candidacy, crossed out the words “is not,” instead choosing to write that Hayes’ “primary residency may not be Howard County.”
“That’s not a fact, that’s an opinion,” said Herceg. “And as a basic requirement of the statute, the challenge can’t be heard and should be dismissed without setting a hearing because it’s not based on a fact.
“He had to verify this under oath, and he started to write a fact, and then he crossed it out and wrote an opinion. So, respectfully, I would contest that this challenge is invalid on its face."
He said the board should "not waste the time to set a hearing.”
Ultimately, board members requested that Herceg submit his motion to dismiss in writing by noon Friday “so that we could confer with our county attorney on that,” said Democratic election board member Derick Steele, who gave an early interpretation of the controversy.
“My gut would be, while I understand the assertions that qualifications of facts may render them lesser than what we would typically like to see, I’m not sure that that would rise to the level of the dismissal on its face,” noted Steele, a Kokomo attorney.
“Like with any general pleading, I would think that when we’re talking about … it being insufficient on its face, we need to air on the side of the challenger. If there’s any grounds here that we could possibly see a basis for the challenge – and not making any determination about Mr. Hayes’ residency – but if it may be an inappropriate residence, that’s enough of a grounds, I think, from my perspective from the board, to at least survive to at least get us to the hearing.”
In response, Herceg underlined what he sees as a clearly written piece of law, saying that “because it’s based on statute, it has to be strictly interpreted.”
“The Legislature, in their wisdom, could have said, ‘set forth the facts or beliefs known to the challenger,’” he continued. “But it didn’t. It said ‘set forth the facts.’
“And ‘may not’ live in Kokomo ain’t a fact.”
Also on the board are Republican Napoleon Leal and Howard County Clerk Debbie Stewart. Leal, however, was represented Wednesday by a proxy, Phil Thurston, who himself vied unsuccessfully for the city council in 2015.
Thurston said Wednesday was the first time he had seen the challenge and needs time to consider it before making a decision.
“I need to read it,” he noted. Thurston is expected to stand in for Leal into next month.
Board members are now expected to confer with Howard County’s attorney, Alan Wilson. A special meeting will be called if board members choose to rule on Herceg's motion before the challenge's official hearing.
A hearing on the Hayes candidacy challenge is set for 2:30 p.m. March 4.
It’s possible that the case could be settled before March 4 if board members choose to rule favorably on the motion to dismiss.
Wendt and Jones
Regardless of how the Hayes case goes, two other challenges will move forward to March 4.
Challenges were filed last week against Democratic council candidates Chris Wendt and Jimmy Jones.
Jones has filed to run in the Democratic primary for the council’s 2nd district seat, against incumbent Bob Cameron; Wendt initially filed in the 2nd district race before switching to the Democratic primary contest for the council’s three at-large seats.
The challenges against Jones and Wendt were both filed by Kokomo resident Justin Kingery, who wrote the same thing for each candidate: “The candidate has not voted in a Democratic primary and is ineligible to file on the Democratic ballot.”