TERRE HAUTE — Although a local judge set a date Thursday to hear a challenge in the city’s mayoral race results, the Indiana Supreme Court may prevent that from ever happening.
Judge David Bolk of Vigo County Superior Court Division 3 set the trial for 1:45 p.m. Dec. 17 for Mayor Kevin Burke’s challenge of the election he lost to Mayor-elect Duke Bennett. Bolk also said the recount will start at 9 a.m. Monday.
But James Bopp Jr., Bennett’s attorney, on Thursday afternoon filed two mandate actions with the Indiana Supreme Court to overrule Bolk. Bolk earlier this week denied Bopp’s motions to dismiss Burke’s recount and election challenge petitions. Bopp had asked for the dismissal since the petitions left out Bennett’s middle initial, thus did not meet the legal requirement of having the candidate’s name as listed on the ballot.
“It’s fatal to the case because it’s jurisdictional,” Bopp said. “The court does not have jurisdiction over this matter unless it’s properly done.”
Bennett, director of operations for Hamilton Center Inc., a not-for-profit, defeated Burke by 107 votes in the election. But the Hatch Act, which Burke believes disqualifies Bennett, limits the political activity of employees of some not-for-profits that receive federal funding.
Burke attorney Ed DeLaney was working on a response to Bopp’s Supreme Court filings when contacted late Thursday afternoon. DeLaney said that Bennett’s side doesn’t want a recount or challenge, “and they want to stop Judge Bolk from doing that over the letter ‘A’.”
“They do not want to ever explain how Mr. Bennett complied with the Hatch Act,” DeLaney said. “There is no circumstance under which they are willing to answer that question.”
Bopp said that during the Thursday morning pre-trial conference, Galen Goode, Hamilton Center’s chief executive officer, testified in a deposition that Burke inquired through a third person about Bennett’s eligibility, and it was determined that Bennett did not violate the federal law.
He added there is a doctrine of latches, which means “you can’t sit on your rights.”
“When you have a claim like this claim, you can’t just wait around until after the election and you will benefit by raising it then by getting a four-year term after being defeated by the voters,” Bopp said, “as opposed to raising it in a timely way so that it can be dealt with. I mean, he’s gaming the system, big time.”
Burke, who did not attend the pre-trial hearing, confirmed Thursday afternoon that he made this inquiry in the “mid-to-late summer.” He said he received the response, though not in writing, that the Hamilton Center researched Bennett’s eligibility in 2003, and found that he did not violate the Hatch Act, which was the same opinion it took in 2007.
Burke initially told his campaign committee that the issue had been dropped. But the morning after Election Day, he received calls from supporters who were upset that Bennett conducted his victory party at Spectrum Industries, which Hamilton Center’s Web site reports is its rehabilitation division.
Burke also said that his supporters wouldn’t give up, and eventually he decided to make it part “of finalizing the election.”
“I didn’t take the first step until I knew I’d take the last step,” Burke said of the challenge, “and I knew this would be a fur ball, and I’m not the least bit surprised that my opponents want this to be about me, and not their actions. That’s pretty consistent.”
Based on the information, though, Bopp said during the conference that he wanted to question Burke for a deposition. He said afterward that the attorneys also agreed to depositions for Burke, Bennett and two other Hamilton Center employees, and to finish Goode’s deposition.
Bennett declined to comment Thursday morning as he walked out of the Vigo County Courthouse.
Bopp said that events will continue as scheduled until, and if, the Indiana Supreme Court overturns Bolk’s decision. Bopp said a decision could come as soon as a week.
In Goode’s deposition, Burke’s attorneys had requested several different kinds of documentation.
DeLaney said that the cooperation level has been high, and that “fundamentally” they are receiving the desired information.
“I feel better after the deposition than I did before…,” DeLaney said.
Austin Arceo can be reached at (812) 231-4214 or austin.arceo@tribstar.com.
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