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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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