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COA voids Terre Haute's 2007 mayoral election

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The man elected Terre Haute's mayor was ineligible because of federal law to become a candidate or assume office, the Indiana Court of Appeals ruled today on an issue of first impression. As a result, a special election is needed to fill the vacancy.

In a divided 2-1 decision in Kevin D. Burke v. Duke Bennett, No. 84A01-0801-CV-2, the majority in a 59-page opinion reversed a lower court ruling that had held mayoral candidate Duke Bennett could take office as mayor despite the applicability of federal law questioning his eligibility.

In November 2007, Bennett beat incumbent Kevin Burke for mayor. Burke then challenged his newly elected opponent based on the Hatch Act, which limits political activity of employees of some non-profit groups that receive federal funding. Before taking office Jan. 1, Bennett was the operations director for Hamilton Center Inc., which receives federal funding for its Early Head Start program. The two have been battling over the mayoral post since late last year when Vigo Circuit Judge David Bolk ruled that Bennett is subject to the Hatch Act but that state law didn't prevent him from taking office.

A Court of Appeals majority of authoring Judge Elaine Brown and Judge Carr Darden disagreed, finding Bennett was subject to what's known as the Little Hatch Act because he was an "officer or employee" at the Hamilton Center and because his principal employment was in connection with an activity financed in whole or in part by U.S. loans or grants. That meant that the applicability of that federal law disqualified Bennett from becoming a partisan candidate for mayor or assuming office, the court wrote.

"Because Burke has standing to contest the election and Bennett is ineligible, we conclude that a vacancy exists," she wrote. "In light of this conclusion, we direct the parties' attention to Ind. Code Sections 3-10-8, which govern special elections."

Judge Edward Najam dissented in his own 13-page opinion, writing that Indiana Supreme Court caselaw in Oviatt v. Behme, 238 Ind. 69, 147 N.E. 2d 897 (1958) is controlling and holds that an action can only be maintained under state statute if the losing candidate can demonstrate that voters knew of the winning candidate's ineligibility at the time of the election. That wasn't the case here and the trial court correctly ruled on that in favor of Bennett, Judge Najam wrote.

"The analytical flaw in the majority opinion is that it relies on Bennett's ineligibility rather than on the determination that, as a matter of law, Burke cannot prevail in his post-election contest," he wrote. "The majority is correct in holding that, given Oviatt, it is incumbent upon candidates to have issues of eligibility brought to the voters' attention prior to the election. But that is precisely why I am obliged to dissent from the majority opinion. In its operation and effect, the rule in Oviatt is akin to a rule of estoppel. The majority opinion nullifies the operation and effect of Oviatt."

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  1. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  2. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  3. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  4. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  5. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

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