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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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