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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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