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Tuesday, December 16, 2008

Ind. Decisions - Court of Appeals nullifies 2007 mayoral election; Bennett, Burke both file appeals

Updating this lengthy list of ILB entries on the Terre Haute mayor's race dispute, Arthus Foulkes of the Terre Haute Tribune-Star has this story today. Some quotes:

The legal fight for control of Terre Haute’s City Hall is inching closer to a possible date with Indiana’s highest court.

On Friday, former Mayor Kevin Burke’s legal team formally asked the Indiana Supreme Court to hear the case, in which Burke is challenging last year’s election victory of Mayor Duke Bennett.

On Monday, Bennett’s legal team did the same, asking the state Supreme Court to overturn portions of a Nov. 13 Indiana Court of Appeals decision that stated Bennett had been ineligible to run for mayor while he was a candidate.

Because the appeals court decision effectively “vacated” the Terre Haute mayor’s office – and because both sides want an audience with the high court – the chances the Supreme Court will take the case are good, said Bryan Babb, Bennett’s attorney. “It’s almost a given,” he said.

Both sides have 23 days to respond to the legal documents just filed by the other side, attorneys for each side said. Burke said he hopes his team can respond as soon as Friday. “I want to file absolutely as soon as possible,” the former mayor said Monday.

Babb believes the Supreme Court may decide whether to take the case sometime in February or March.

Bennett’s team is asking the state Supreme Court to decide how broadly the state should apply the Hatch Act to Hoosier political candidates. Bennett’s legal brief filed Monday emphasizes that Bennett had only a very small connection to a federally funded Head Start program operated by his former employer, the Hamilton Center. A federal law known as the Little Hatch Act limits the political activity of the employees of some not-for-profit agencies that operate federal programs, such as Head Start. * * *

The Burke legal team, meanwhile, is asking the court to decide the constitutionality of an Indiana law that they say shows clearly that Bennett was not eligible to run for mayor for working at the Hamilton Center and shows that Burke should have been named the rightful winner of the election.

“We think that the proper remedy is that Mr. Burke be seated” as mayor, said Ed DeLaney, Burke’s attorney. “I mean, that’s what the statute says so it’s really just that simple,” he said. “We don’t think there is a constitutional problem.”

According to the Burke legal brief filed Friday, “One must presume that the [Indiana] election contest law, which specifically allow for disqualification on the basis of the Little Hatch Act … exists to be enforced.”

Here is the Nov. 13th ILB entry summarizing the Court of Appeals 2-1 opinion in the case of Kevin D. Burke v. Duke Bennett.

Posted by Marcia Oddi on December 16, 2008 10:26 AM
Posted to Ind. App.Ct. Decisions