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December 8, 2007

DeLaney: Missing initial irrelevant

Burke attorney cites Indiana law in response to motions to dismiss recount, challenge

By Austin Arceo

TERRE HAUTE — A century of Indiana case law supports Mayor Kevin Burke’s position in an issue before the state Supreme Court, Burke’s attorneys wrote in a brief filed Friday.

Burke attorney Ed DeLaney filed a brief opposing those filed by James Bopp Jr., the attorney for Mayor-elect Duke Bennett. Bopp on Nov. 29 filed mandate actions with the Indiana Supreme Court to overrule Judge David Bolk, of Vigo County Superior Court Division 3. Bolk had earlier denied Bopp’s motions to dismiss Burke’s request for a recount and to challenge petitions the incumbent filed after he lost the election to Bennett last month.

Since Burke’s petitions failed to mention Bennett’s middle initial, Bopp argues, they do not comply with state law to list candidates as they appear on the ballot.

“Such a reading is not unreasonable and is consistent with prior Supreme Court rulings addressing name requirements in petitions for contests and recounts,” two of Bopp’s Supreme Court briefs state.

DeLaney, in his brief, cites a 1908 case in which the Supreme Court stated that an absent middle initial, or even a wrong one inserted in someone’s name would not “‘create a misnomer.’”

“The recount and the contest are worthy of being decided on their merits,” the DeLaney brief states, “instead of being dismissed over a trivial technicality.”

Bopp had the chance to review the DeLaney filing, which he said is “a lot of creative legal arguments trying to avoid the letter of the law.”

“So they’re citing cases that involve other statutes and other legal issues,” Bopp said, “so this doesn’t have anything to do with the statute at hand.”

DeLaney said that the filing meets the requirements of the statute, and that the situation is not about “gotcha,” but who is qualified to be the next mayor.

“We think that’s what ought to be discussed,” DeLaney said. “Mr. Bennett and his lawyer don’t want to talk about whether he is” qualified.

DeLaney’s filing also claims that Bopp had filed the wrong type of motion for the dismissal.

The final deadline to file a brief with the Indiana Supreme Court was noon Friday. Bopp said the court will likely rule on his motions this week.

Bennett could not immediately be reached for comment Friday.

Burke contends that Bennett is not qualified to be a candidate based on the Hatch Act, a federal law that limits the political activity of employees of some not-for-profits receiving federal funds.

Bennett is the director of operations for Hamilton Center, Inc., a not-for-profit.

Both sides will continue to work in preparation of the Dec. 17 hearing date for the challenge. Several people, including Bennett and Burke, will be deposed for the hearing.

“It’s an opportunity for me to go in and state the facts as they are and tell the truth,” Burke said of his deposition. “There’s just not much of a story here, and we look forward to the opportunity of getting that accomplished so we can get to the 17th.”

Burke, through a third person, had inquired about Bennett’s eligibility earlier this summer because of the Hatch Act, Burke said.

The mayor-elect’s attorney had also referred to the “doctrine of laches,” which he said means somebody can’t sit on their rights.

Bopp, who argued before the 11th U.S. Circuit Court of Appeals in Atlanta in litigation stemming from the recount in the 2000 election between President George W. Bush and former Vice President Al Gore, said the local recount is pretty standard, but not Burke’s challenge.

“I’ve never had a case where a candidate like Mayor Burke … tried to game the system like he has, like he’s trying to,” Bopp said.

Austin Arceo can be reached at (812) 231-4214 or austin.arceo@tribstar.com.

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