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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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