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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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