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Justices: new Terre Haute election not needed

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A special election isn't needed to determine the rightful mayor of Terre Haute, the Indiana Supreme Court ruled today.

In a unanimous six-page ruling in Kevin D. Burke v. Duke Bennett, No. 84S01-0904-CV-148, justices took less than three weeks to reach their decision after hearing arguments May 28. The court affirmed a Vigo County judge's finding that Duke Bennett, who defeated incumbent Kevin Burke in the November 2007 general election, was the qualified mayoral candidate who received the highest number of votes for the seat.

Burke is challenging whether Bennett should have been elected mayor of Terre Haute because he worked at the time for a nonprofit that received federal funds. The case boils down to state law disqualifying people from being candidates if they are subject to the federal Hatch Act, which limits political activity of federal employees and the employees of some non-profit groups that receive federal funding.

Both sides dispute whether the law covered Bennett because he worked as an operations director for the Hamilton Center, a multi-county mental health organization that operates a federally funded Head Start program.

At the trial level, Judge David Bolk had ruled that Bennett was subject to the Hatch Act as a candidate but that he wasn't covered by it at the time he was to take office, so he was allowed to take office in January 2008. But an Indiana Court of Appeals panel last year found Bennett in violation of the federal law and ordered him to vacate the mayor's office. It also found that Burke shouldn't be allowed to take office because his Hatch Act complaint came after the election was finished so a special election was needed, the appellate judges decided.

The justices disagreed, finding that Indiana's disqualification statute in Indiana Code Section 3-8-1-5(c)(6) that Burke used as a base for his case does not prevent Bennett from taking office. First, the court found that Bennett wouldn't have worked for the Hamilton Center anymore once becoming mayor, so he wouldn't be subject to the federal law.

"... The issue is not whether a successful candidate was subject to the Act or had been in violation of it when the candidate became or remained a candidate," the court wrote. "Rather, it is whether the election winner is subject to the Act and whether he would violate it by becoming or remaining a candidate. This disqualification requires proof that a person would, in the future, violate the Act by becoming or remaining a candidate. Clearly, this disqualifier is inapplicable in a post-campaign election contest."

Justices wrote that this application of the Indiana disqualification statute is consistent with its longstanding respect for the right of people to have free and equal elections, and the high court's reluctance to remove someone from office who's been elected. The only time that has happened was in Pabey v. Pastrick, 816 N.E. 2d 1138, 1148 (Ind. 2004), when justices tossed the results of a 2003 election in East Chicago because of voter fraud. But precedent is that the court has refused to remove an elected officeholder on claims of ineligibility unless the electorate had notice or knowledge of that ineligibility or disqualification.

The mayor's attorney said he understands the decision focuses mostly on the state statute, and he wasn't surprised the justices did not spend as much time in the ruling on the constitutional issue as it relates to the Hatch Act.

"The court works very hard in not reaching into constitutional issues if they don't have to but can resolve a case on a statutory grounds," said Bryan Babb with Indianapolis-based Bose McKinney & Evans, one of Bennett's attorneys.

Indianapolis attorney Ed DeLaney with DeLaney & DeLaney, who represented Burke, said he hadn't had a chance to read the decision today but had gotten a short summary of it.

"They ruled on a strict statutory construction issue, and while I certainly read the statute a different way, I respect the court and its decision and hope the city of Terre Haute can get back to business."

When asked if he'll seek rehearing, DeLaney referred to it as unlikely given the unanimous vote, but said he hasn't ruled it out completely and would need to consult his client and study the ruling before making a decision.

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