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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. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  2. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  3. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  4. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  5. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

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