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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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