ILNews

Justices: new Terre Haute election not needed

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

ADVERTISEMENT