Legal battle to be mayor: Burke, Bennett appear before appeals court

By Arthur E. Foulkes

INDIANAPOLIS — The Indiana Court of Appeals listened to arguments Tuesday in the case of Burke v. Bennett – the legal battle for the job of mayor of Terre Haute.

In the approximately 90-minute oral argument, former Mayor Kevin Burke was represented by Ed DeLaney, an Indianapolis attorney. Mayor Duke Bennett was represented by Indianapolis-based attorney Bryan Babb.

The case found its way to the appeals court after Burke contested a December ruling by Vigo County Superior Court Judge David Bolk that allowed Bennett to take office as mayor. Bolk ruled that way despite also ruling that Bennett was subject to the Hatch Act, a federal law that limits the political activities of employees of not-for-profit organizations that receive federal money.

Bennett, before becoming mayor, was director of operations at the not-for-profit Hamilton Center, which operates a federally funded Head Start program.

Burke, who lost the November election by 110 votes to Bennett, believes the Hatch Act and Indiana law require that he should be returned to the office of mayor.

“My client is not embarrassed to say the law requires this result,” DeLaney said to the three appeals court judges.

Bennett’s attorney, on the other hand, argues, as Judge Bolk ruled, that Indiana law only applies the Hatch Act to candidates for office, not sitting mayors. Babb also argued that Bennett’s role at the Hamilton Center had very little to do with the organization’s Head Start program.

“He was not employed by Head Start. He did not have a regular, foreseeable role with Head Start. He did not have supervisory control over Head Start funds,” Babb told the judges.

Two key areas of disagreement in the case are whether the Hatch Act applies to any candidate – with the exception of sitting officeholders – involved in any way with federal funds and whether Hatch Act violations, under Indiana law, are grounds for overturning an election result.

While federal Hatch Act violation penalties do not include removal from office, Indiana’s “legislators decided those [federal] sanctions were not enough,” DeLaney told the court.

Federal law states anyone “employed by a state or local agency whose principal employment is in connection with an activity which is financed in whole or in part” by federal money is subject to the Hatch Act. However, Babb argued that there are cases where the degree of involvement in a federally funded program has been taken into account in deciding whether the Hatch Act applies to individual candidates.

The court should rule that the Hatch Act only applies to people who directly receive or direct the spending of federal money, Babb said, adding that otherwise, “we’re going to lose a whole lot of qualified candidates” for public office.

Each of the appeals court judges asked questions of both lawyers. Presiding judge Edward W. Najam Jr. focused many of his questions around whether Indiana’s law applied only to candidates or could be used to sanction an elected official. He also asked several questions about the extent of Bennett’s involvement with Head Start.

Judge Elaine Brown asked Babb why the Bennett team did not reference a 1958 Indiana Supreme Court case, which she said made a strong argument for Bennett’s side. She also asked why Burke and Bennett both failed to have the Office of Special Counsel investigate Bennett’s eligibility prior to the November election.

Judge Carr L. Darden asked Burke’s attorney about Bennett’s role at the Hamilton Center and asked Babb why Bennett didn’t seek pre-election advice from Indiana or federal election officials.

“I think it went very well,” Bennett said after the oral arguments were completed. “I feel good about our position.”

Burke, who also attended the oral arguments, said he was reassured by the U.S. judicial system. “Win or lose, we were given the opportunity to state our case. I feel very blessed to live in a country where we can do that.”

The three-judge panel will publish its decision as soon as possible, Najam said at the end of the arguments. He also warned the audience not to try to predict their decision based on their questions.

Audio and video of Tuesday’s oral argument is available online at the Indiana Court of Appeals Web site, www.in.gov/judiciary/appeals/.

The court’s decision will be subject to appeal.

Arthur Foulkes can be reached at (812) 231-4232 or arthur.foulkes@tribstar.com.

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