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Justices asked to take Terre Haute mayor case

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The Indiana Supreme Court is being asked to consider the role a federal law plays in deciding who is Terre Haute's current mayor and whether a special election is needed.

In a rare but not unprecedented move, both the winning and losing sides in the ongoing appeal want the state's highest court to take the case, which presents an issue of first impression that will not only determine who is Terre Haute's mayor but also has statewide implications for future Hoosier elections.

The transfer petitions filed Friday and Monday in Kevin D. Burke v. Duke Bennett, No. 84A01-0801-CV-2 follow a 2-1 decision on Nov. 12 from the Court of Appeals, which declared Terre Haute Mayor Duke Bennett was ineligible for that post because the federal Hatch Act had prevented him from being a candidate in 2007 or assuming office this year. The appellate court ordered a special election to resolve the dispute.

Burke and Duke Bennett have argued about this for more than a year. In November 2007, Bennett beat incumbent Burke for the mayor's job and the ousted mayor filed a challenge based on the federal law known as the Little 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. Vigo Circuit-Superior Judge David Bolk ruled late last year that Bennett was subject to the Hatch Act, but that state law didn't prevent him from taking office; the appellate court didn't agree and paved the way for both parties to now seek final word from the Indiana Supreme Court.

On Friday, former mayor Burke's legal team - led by Indianapolis attorney Ed DeLaney of DeLaney & DeLaney - filed a transfer petition asking the court to reverse portions of the lower appellate court's decision vacating Bennett's win so that Burke would be declared the winner instead. Transfer should be granted because it asks for reconsideration of the high court's precedent, the petition says.

Specifically, the case asks the court to consider whether the Indiana Constitution prohibits the application of Indiana Code 3-12-8-17(c), which requires the court to certify as elected the qualified candidate who receives the most votes when the candidate who receives the highest overall number of votes is subsequently disqualified in a post-election contest.

Bennett's legal team - led by Terre Haute attorney Terry Modesitt and Bose McKinney & Evans attorneys Bryan Babb and George Patton of Indianapolis- filed its own transfer petition Monday, the final day to do so, also asking the justices to overturn portions of the ruling.

"The resulting rule of law (from the Court of Appeals decision) is incapable of fair, prospective application and creates unsound public policy for Hoosiers, who will be unnecessarily dissuaded from running for state and local political offices," Bennett's petition says. "This Court should chart Indiana a new course and adopt a fair and predictable standard that would limit the Election Contest Statute's reach to those employees at private non-profits and state agencies, who plan, develop, coordinate, or otherwise implement the federally-funded program."

The Bennett team argues that deciding not to take the case and leaving the Court of Appeals' ruling in place would go against caselaw. Both appellate courts have enforced Indiana's common law rule of constitutional dimension that an election loser can't succeed on a post-election contest if the alleged ineligibility was unknown to voters at election time.

A common request from both Burke and Bennett is for justices to vacate the Court of Appeals' determination that a special election be held. However, the team notes that if a new election is to be held, the Supreme Court must limit it to just those two candidates - Bennett had resigned from Hamilton Center following the original court challenge, so he's no longer subject to the Little Hatch Act at issue here and would be presumably be eligible to run.

Both sides now have 23 days to respond to the transfer petitions before the court considers whether to take the case.

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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