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November 14, 2008

Court ruling creates many ‘What ifs’

By Sue Loughlin

TERRE HAUTE — The possibility of a special Terre Haute mayoral election is raising many questions about how it would be conducted and how party nominees would be chosen.

“A bomb went off [Thursday] morning,” said Pat Mansard, Vigo County clerk.

She was referring to an Indiana Court of Appeals decision that throws out the 2007 mayoral election and calls for a special election.

In the 2-1 decision, the court ruled that winner Duke Bennett was ineligible to take the office he won when he defeated incumbent Kevin Burke.

The court majority also concluded that Burke could not win an election in which voters were not fully informed of Bennett’s ineligibility.

As far as a special election, “There are a lot more questions than answers,” Mansard said. “We’re going to have to wait until we get direction from the courts … We’re plowing new ground here.”

On Friday, Mansard and other members of the County Election Board still were working on the recent general election and certifying results.

Bennett has said he plans to appeal the latest court ruling to the Indiana Supreme Court, which could overturn the Appeals Court decision.

Mansard suggests the legal process must play out before specific special election procedures are known. “We don’t know if it’s going to unfold pretty rapidly or if it’s going to take more time,” she said.

She and others appear to agree on one point, that it’s likely the nominees for the election would be chosen through a caucus of eligible precinct committeemen and women.

Calls to the Indiana Election Division were referred to Jim Gavin, communications director with the Secretary of State’s office.

“The Election Division is reviewing the ruling and will be prepared to assist local election officials in conducting a special election, if that’s ultimately what transpires,” Gavin said.

He had no further comment related to special election procedures.

Bill Treadway, Vigo County Republican chairman, said the Appeals Court decision is unprecedented in Indiana.

“This is kind of a first,” Treadway said. “In the state of Indiana, we’ve never had a sitting elected official removed after an election based on a Hatch Act violation.”

Indiana Code outlines various procedures for filling vacancies before an election, as well as in cases in which someone dies or resigns while occupying an elected office.

If Bennett does not win his appeal and a special election becomes necessary, the case would be remanded back to the trial court, Treadway said. Superior Court Division 3 Judge David Bolk would outline procedures and rules, and he would order the county clerk to proceed with an election.

The Appeals Court decision states as follows: “We order the trial court to issue a [court order] of election” pursuant to Indiana code dealing with special elections.

Treadway said it’s not yet known what procedures would be used to select party nominees for a special election. “It depends on how the court rules,” he said. It could be a caucus of eligible precinct committeeman, although in one scenario, it could be the county political chairmen who select the party’s nominees for a special election.

Joe Etling, Vigo County Democratic chairman, said that until all appeals and court proceedings are exhausted in the case, “It’s premature to have that conversation” about how a special election would be conducted and how nominees would be chosen.

If a special election did become necessary, Etling believes the nomination process would be through a caucus of eligible precinct committee persons.

Treadway said that if party caucuses are used to select nominees, others beside Burke and Bennett could seek their respective party’s nomination.

Vigo County Republican precinct committee members “are committed to Mayor Bennett,” Treadway said. “I’d be surprised if anyone else ran in a caucus against him.”

Treadway believes the Hatch Act issue would be moot because Bennett no longer works at Hamilton Center, therefore he is no longer in violation of the Hatch Act.

Bryan Babb, an attorney with Bose, McKinney and Evans who is representing Bennett, said neither party sought a special election and the issue hasn’t been argued in the legal challenge.

“It’s something none of the parties gave any thought to,” he said. The Appeals Court decision calling for a special election raises more questions than it provides answers, he said.

When a case goes to the Indiana Supreme Court, typically both parties have vigorously presented all the viewpoints. “No one has presented a viewpoint or argument on any of this [mayoral vacancy and special election] except the Court of Appeals,” Babb said.

Richard Shagley II, an assistant to Democrat Dean Myers on the Vigo County Election Board, said that before a special election would occur, Bolk would have to issue an order of election based on Indiana code.

He suggests the political parties would caucus and eligible precinct committee members would select their nominees. He believes the special election would occur on the ninth Tuesday after Bolk enters an order requiring an election, based on Indiana code.

Sue Loughlin can be reached at (812) 231-4235 or sue.loughlin@tribstar.com.

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