By Arthur Foulkes
TERRE HAUTE — The legal fight for control of Terre Haute’s City Hall is inching closer to a possible date with Indiana’s highest court.
On Friday, former Mayor Kevin Burke’s legal team formally asked the Indiana Supreme Court to hear the case, in which Burke is challenging last year’s election victory of Mayor Duke Bennett.
On Monday, Bennett’s legal team did the same, asking the state Supreme Court to overturn portions of a Nov. 13 Indiana Court of Appeals decision that stated Bennett had been ineligible to run for mayor while he was a candidate.
Because the appeals court decision effectively “vacated” the Terre Haute mayor’s office – and because both sides want an audience with the high court – the chances the Supreme Court will take the case are good, said Bryan Babb, Bennett’s attorney. “It’s almost a given,” he said.
Both sides have 23 days to respond to the legal documents just filed by the other side, attorneys for each side said. Burke said he hopes his team can respond as soon as Friday. “I want to file absolutely as soon as possible,” the former mayor said Monday.
Babb believes the Supreme Court may decide whether to take the case sometime in February or March.
Bennett’s team is asking the state Supreme Court to decide how broadly the state should apply the Hatch Act to Hoosier political candidates. Bennett’s legal brief filed Monday emphasizes that Bennett had only a very small connection to a federally funded Head Start program operated by his former employer, the Hamilton Center. A federal law known as the Little Hatch Act limits the political activity of the employees of some not-for-profit agencies that operate federal programs, such as Head Start.
The Indiana “Court of Appeals incorrectly decided an important issue … by finding that a Hoosier who worked at a local non-profit agency was subject to the federal Hatch Act, even though his role with the disqualifying federally funded program was ‘essentially nonexistent,’” the Bennett brief states. If the appeals court decision stands, it will unfairly dissuade otherwise qualified candidates from seeking public office, the 18-page document states.
The Bennett team also asks the Supreme Court to uphold two lower court rulings that said Burke’s election challenge, which started after the election was over, came too late.
The Burke legal team, meanwhile, is asking the court to decide the constitutionality of an Indiana law that they say shows clearly that Bennett was not eligible to run for mayor for working at the Hamilton Center and shows that Burke should have been named the rightful winner of the election.
“We think that the proper remedy is that Mr. Burke be seated” as mayor, said Ed DeLaney, Burke’s attorney. “I mean, that’s what the statute says so it’s really just that simple,” he said. “We don’t think there is a constitutional problem.”
According to the Burke legal brief filed Friday, “One must presume that the [Indiana] election contest law, which specifically allow for disqualification on the basis of the Little Hatch Act … exists to be enforced.”
The Burke team also asks the high court to limit a possible special election to just Bennett and Burke. The Court of Appeals had ruled that a special election must be conducted. If the Supreme Court declines to hear the case, the appellate court’s ruling would stand.
Bennett is optimistic the state Supreme Court will agree to hear the case. He also said he hopes the court makes its decision quickly. “I only hope they do it fast. I’m all for getting this resolved.”
Burke, meanwhile, was critical of Bennett for waiting until the last possible day to file his “petition for transfer” with the Supreme Court. “Their intention is for this to take as long as possible,” Burke said Monday. Burke has said before that Bennett’s team tends to take the full time allowed to file its legal documents.
“You get one chance at getting this right,” Bennett said in answer to Burke’s criticism. “It’s important for us to do all of our research. I would rather have a good document done than to rush something through.”
Arthur Foulkes can be reached at (812) 231-4232 or arthur.foulkes@tribstar.com.
