MEMORANDUM DECISION
Case Summary
[1] Justin Green, a longtime resident of Salem, Indiana declared his intent to run for mayor in January of 2019. Before the election, members of both major political parties made inquiries with the Salem city clerk about whether Green met the residency requirements to run for mayor. Before the election, there was extensive media coverage surrounding Greens residency, including a local radio station livestreaming a tour of Greens Salem home on Tucker Street. After Green won the general election, garnering seventy-two percent of the vote, William Ackerman, Greens Democratic opponent in the election, challenged the results arguing that, pursuant to Indiana Code section 3-13-8-2(1), Green had not met the residency requirements to run for mayor and therefore should be disqualified. At the conclusion of the bench trial, the court found that Ackerman had not met his burden of proving that Green was not a resident of Salem during the required residency period. Ackerman appeals, arguing that the trial court erred in reaching its factual and legal conclusions. Ackerman ultimately requests that we disqualify Mayor Green from his elected office and declare him the winner of the race. We affirm.
Facts and Procedural History
[2] Green was born in Salem in 1977 and graduated from Salem High School in 1995. After graduating from college in 1997, Green returned to Salem, moving into the Walnut Street Apartments within the Salem city limits and changed his voter registration from his familys farm to his new apartment. In 1999, Green moved to 115 Nichols Avenue, located within the City Limits of Salem. Green changed his voter registration to reflect his new address shortly thereafter. In 2003, Green bought a home at 106 Macon Avenue (the “Macon Ave. Property”), which was also located within the Salem city limits. Green again changed his voter registration to reflect his new address. Green lived at the Macon Ave. Property for thirteen years.
[3] On October 20, 2012, Green bought a house on sixty-six acres at 2900 North Old State Road 56 (the “Old SR 56 Property”), outside the Salem city limits. On the sales disclosure form for the Old SR 56 Property, signed by Green and filed with the Washington County government offices, the Macon Ave. Property was listed as Greens primary residence. Green did not fill out the sales disclosure form for the Old SR 56 Property, but he did provide the information and sign the document. The homestead exemption box was checked on that sales form, though it did not indicate which property to apply it to. The deputy auditor of Washington County testified that she took steps to assign a homestead tax exemption on the Old SR 56 Property. The deputy auditor made no attempts to contact Green concerning his desire to have a homestead exemption applied to the Old SR 56 Property.
[4] On June 3, 2016, Green sold the Macon Ave. Property and, ten days later, purchased the property in Salem located at 509 Tucker Street property (the “Tucker St. Property”). On September 21, 2016, Green secured a building permit to begin renovations on the building at Tucker St. Property, which at the time was an uninhabitable pole barn. The Tucker St. Property was inspected on July 17, 2017, and considered habitable, though it did not have kitchen appliances or carpeting and was not fully furnished at that time. Shortly after the property became habitable, Green moved to reside at the Tucker St. Property.
[5] On January 15, 2019, Green filed a candidate organization form declaring his intent to run for mayor of Salem. After becoming concerned about whether Green met the residency requirements to run for mayor, members of both the Republican and Democratic parties contacted the Washington County clerk regarding Greens residency. No formal challenge was made before the May primary. One year prior to the general election, Ackerman, the Democratic candidate for mayor of Salem, conferred with various individuals who led Ackerman to conclude that Green did not reside in Salem.
[6] When Green learned his qualifications for mayor were being questioned and that the homestead exemption had been assigned to the Old SR 56 Property, he requested that the exemption be changed to the Tucker St. Property and indicated that he would pay any indebtedness to the County for the incorrect exemption. Green visited the auditors office approximately five times in 2019 in the process of changing the homestead exemption from the Old SR 56 Property to the Tucker St. Property, eventually succeeding.
[7] Ackerman and the Democratic party chair raised the issue of Greens residency throughout the campaign. The local press reported on these allegations before the general election, and the allegations circulated on various social-media sites. Green also allowed a local radio station to tour the Tucker St. Property on September 16, 2019, and broadcast the video on Facebook, during which it can be seen that the house has running water, electricity, appliances, air conditioning, and furniture.
[8] The general election was held on November 5, 2019, and Green won the mayoral race with seventy-two percent of the vote. On December 3, 2019, Ackerman brought suit, alleging that, pursuant to Indiana Code section 3-12-8-2(1), Green had not resided in Salem for at least one year prior to the November 5, 2019, municipal election. A bench trial took place on April 14 and 15, 2020. On May 6, 2020, the trial court denied Ackermans requested relief.
Discussion and Decision
[9] Ackerman challenges the trial courts conclusion that Green satisfied the residency requirements of Indiana Code section 3-13-8-2(1), which provides, in part, that “[a] candidate for the office of mayor of a second or third-class city must have resided in the city for at least one (1) year before the election.” “[B]efore the election,” as used in Indiana Code 3-8-1-26, means “before the municipal election;” the statute does not require that a candidate for mayor reside within the city for at least one year prior to a primary election. In re Nomination of Parker, 580 N.E.2d 1006, 1008 (Ind. Ct. App. 1991). These statutes apply because Salem is a third-class city.
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[10] When the trial court enters a finding of fact, we will not set aside the findings of fact of the trial court unless the findings are clearly erroneous. State Election Bd. v. Bayh, 521 N.E.2d 1313, 1315 (Ind. 1988) (citing In re Wardship of B.C., 441 N.E.2d 208 (1982)). “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.” Kite v. Curlin, 139 N.E.3d 1114, 1120 (Ind. 2019) (citing Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 216 (Ind. 2012)). “The trial court will not be reversed on the evidence unless there is a total lack of supporting evidence or the evidence is undisputed and leads only to a contrary conclusion.” Bayh, 521 N.E.2d at 1315. “We will neither reweigh the evidence nor reassess the credibility of the witnesses and will not set aside the fact-finding of the trial court unless it is clearly erroneous.” Id. “We review the trial courts legal conclusions de novo.” Kite, 139 N.E.3d at 1120.
[11] Ackerman paints a different picture than the trial courts factual foundation which supported its legal conclusions; however, we will not undertake any reweighing of the evidence or reassessing the credibility of the witnesses at trial. See Bayh, 521 N.E.2d at 1315. The trial court concluded that, while Green had a complicated history of residency and property allocation, he was a resident of Salem for the purposes of election eligibility. Specifically, Ackerman insists that it is of major importance that Green took a homestead exemption on the Old SR 56 Property. Ackerman also asserts in his brief that Green personally requested the homestead exemption by checking a box on the purchase agreement. Green, however, testified that the Tucker St. Property was his residence for one year prior to the general election, and the trial court apparently credited this testimony, as it was entitled to do.
[12] Further, Ackerman argues that the trial court improperly interpreted controlling caselaw, specifically the Indiana Supreme Courts decision in Bayh. Ackerman contends that Green did not meet the definitions of domicile or intent established by Bayh, and so the trial court misapplied the case by finding that Green could have met the residency requirement. We do not believe that the trial court misapplied Bayh as Ackerman contends. The Indiana Supreme Court stated in Bayh that “[d]omicile means where a person has his true, fixed, permanent home and principal establishment, and to which place he has, whenever he is absent, the intention of returning.” Bayh, 521 N.E.2d at 1317 (internal quotations omitted). The Bayh Court went on to state:
[o]nce acquired, domicile is presumed to continue because every man has a residence somewhere, and ․ he does not lose the one until he has gained one in another place. Establishing a new residence or domicile terminates the former domicile. A change of domicile requires an actual moving with an intent to go to a given place and remain there. It must be an intention coupled with acts evidencing that intention to make the new domicile a home in fact․ There must be the intention to abandon the old domicile; the intention to acquire a new one; and residence in the new place in order to accomplish a change of domicile.
Id. (internal quotations and citations omitted).
[13] The trial courts conclusion that it was “Greens intent [․] to either establish his permanent residence at [the Tucker St. Property] or to convey the appearance that he was residing at said address,” is not inconsistent with the holding in Bayh. The trial court weighed the evidence for and against establishing Greens intent to be a resident of Salem looking to his voter registration, his insurance license, his income tax returns, the water usage at the Tucker St. Property and Old SR 56 Property, as well as testimony from Greens neighbors concerning his comings and goings at the Tucker St. Property and Old SR 56 Property. It seems clear to us that the trial court carefully considered the evidence which established Greens domicile. Ackermans argument that the trial court did not properly examine the evidence as required by Bayh, appears to be nothing more than a request to reweigh the evidence, which we will not do.
Conclusion
[14] While Ackerman argues (1) the trial court did not consider all the evidence and (2) the trial court improperly applied controlling precedent, we are unpersuaded. The burden of proof for overturning an election is, understandably, a high one. Here we will heed the Indiana Supreme Courts longstanding preference to avoid overturning free and fair elections and frustrating the will of our fellow Hoosiers. See White v. Indiana Democratic Party, 963 N.E.2d 481, 486 (Ind. 2012); Pahey v. Patrick, 816 N.E.2d 1138, 1148 (Ind. 2004); Oviatt v. Behme, 147 N.E.2d 897, 900 (Ind. 1958).
[15] The judgment of the trial court is affirmed.
FOOTNOTES
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. Indiana Code section 36-4-1-1 states that “[m]unicipalities are classified according to their status and population as follows: STATUS AND POPULATION [․] Cities of less than 35,000 [․] Third class cities.” Salem, Indiana is a third class city, as it has an estimated population of 6,201 as of July, 2019. US Census Bureau, Quick Facts Salem Indiana (2019), https://www.census.gov/quickfacts/fact/table/salemcityindiana/PST045219.
Bradford, Chief Judge.
Kirsch, J., and May, J., concur.