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Friday, December 21, 2007

Ind. Decisions - More on: Judge rules in Terre Haute mayoral Hatch Act challenge [Updated]

Updating this ILB entry from earlier this afternoon, here is Judge David R. Bolk's 14-page opinion in Kevin D. Burke v. Duke Bennett (Dec. 21, 2007).

[Updated 12/22/07] Austin Arceo of the Terre Haute Trib-Star reports on the ruling today:

Though a Vigo County judge agreed that Mayor-elect Duke Bennett was affected by a law limiting political activity, a challenge came too late to overturn his election victory.

Judge David Bolk, of Vigo County Superior Court Division 3, ruled that Bennett is eligible to take the city’s top executive office. Mayor Kevin Burke, who lost by 110 votes to Bennett last month, contested the election results by challenging Bennett’s eligibility due to the Hatch Act, a federal law that limits the political activity of employees of some not-for-profits receiving federal money, such as Head Start funding. * * *

Bennett’s attorneys contended that the mayor-elect’s role with the Hamilton Center’s Head Start funding was so insignificant that Bennett was not subject to the Hatch Act.

Burke’s side said that Indiana law prevented Bennett from taking office if he was subject to the federal act.

But Bolk ruled that, since Bennett was now the mayor-elect and not a candidate, which is written in the state law, he is not affected by the Indiana statute.

He also stated that Bennett cannot be disqualified under the state law because he has not taken office.

“At the time of taking mayoral office, Bennett will no longer be employed at the Hamilton Center,” Bolk stated in the ruling. “Thus, when he is assuming office, he will no longer be employed by the Hamilton Center and, consequently, will not be subject to the” Hatch Act.

Bolk cited a previous Indiana case in which the court “held that ineligibility must exist at the time the term of the office begins.” * * *

“The ruling itself begs for an appeal,” Burke said during a phone interview Friday, “but I have to tell you, I’m running out of gas.” * * *

Burke attorney Ed DeLaney said this case has been the most unusual he’s seen. He also said the issue of a candidate’s qualification rarely comes up “because people don’t normally do what Mr. Bennett did.”

Bennett attorney James Bopp Jr. said that Burke had a claim, but failed to act. Bopp also said that Burke thought this challenge was his trump card to win another term if he lost the election, “and instead the trump card came up a joker.”

Burke’s lawyers on Thursday also filed paperwork in which they indicated they won’t appeal the recount, DeLaney said.

Burke said that the recount won’t be challenged because it “would be counter-productive to what actually needs to be done,” which is improve how elections are administered.

Bopp said that everything is final and Bennett will take office. The attorney also said that he was pleased that voters “get their choice for the new mayor” based on Bolk’s ruling.

“It’s a pretty complex question that he’s been dealing with, and I thought it was thoughtful and well-reasoned,” Bopp said, “and … I’m confident it would be sustained on appeal.”

Burke said that he understands that people are growing weary of the situation, and he’ll decide on a potential appeal soon, though it was not determined Friday.

“So like I said, today’s not the day to make that important of a decision,” Burke said. “Emotions are a little raw, and you don’t make your best decision when you’re feeling that way.”

Posted by Marcia Oddi on December 21, 2007 03:03 PM
Posted to Ind. Trial Ct. Decisions