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June 16, 2009

Indiana Supreme Court rules in favor of Bennett

By Arthur E. Foulkes

TERRE HAUTE — The long and contentious battle to settle Terre Haute’s 2007 mayor’s election is over.

The Indiana Supreme Court on Tuesday handed down a unanimous decision, affirming Duke Bennett as the elected mayor of the city.

For the past 19 months, uncertainty has clouded City Hall because of a legal challenge to the 2007 mayor’s race, in which Bennett was elected by 110 votes over incumbent Mayor Kevin Burke.

Two weeks after the election, Burke challenged the result. He charged that Bennett had been ineligible to run for mayor under Indiana law. Indiana law disqualifies any candidate for partisan office who is subject to the Hatch Act, a law that limits the political activity of federal employees and employees of some not-for-profit agencies that receive federal funding.

Prior to taking office, Bennett was director of operations at Hamilton Center, a multi-county, not-for-profit mental health organization that operates a federally funded Head Start program.

The Indiana Supreme Court heard the case of Burke v. Bennett on May 28 in the state capitol building in Indianapolis. On Tuesday, less than three weeks later, the court handed down a 5-0 ruling that agreed with a ruling made more than a year ago by Vigo County Superior Court Judge David Bolk. Bolk’s ruling stated Bennett could lawfully take office as mayor despite violating the Hatch Act while he was a candidate.

Tuesday’s high court decision, written by Justice Brent Dickson, stated that Burke’s challenge to Bennett’s candidacy under the Hatch Act came too late. According to Indiana law, Dickson wrote, a Hatch Act violation can only prevent someone from becoming a candidate for office or remaining a candidate. It does not apply to someone after an election is over since that person is no longer a candidate, the court found.

“Clearly this disqualifier is inapplicable to establish ineligibility in a post-campaign election contest,” Dickson’s six-page decision states.

After making this narrow legal point, Dickson then draws on what he calls “the long-standing respect for the right of the people to free and equal elections and the reluctance of this Court to remove from office a person duly elected by the voters.” Dickson then quotes a 1958 Indiana Supreme Court decision in which it was stated that the “will of the people in the choice of public officers may not be defeated by any merely formal or technical objections.”

Bennett, who learned of the court’s decision through the news media early Tuesday afternoon, said he was surprised the court made its ruling so quickly. He also said the court affirmed what he had believed all along.

“It was good to see that it was a unanimous decision to uphold Judge Bolk’s decision,” he said.

Former Mayor Burke, meanwhile, called the decision troubling. “How do we explain this decision to our children?” he asked. Several judges found Bennett had been in violation of the Hatch Act as a candidate, but he “got away with it,” Burke said. “Five judges decided it didn’t matter if he was elected legally or not,” he said.

The Indiana Supreme Court is the third court to hear Burke v. Bennett. After Bolk’s 2007 ruling that Bennett could take office, Burke appealed that ruling to the Indiana Court of Appeals. In November, the appeals court overturned Bolk’s decision and called for a special election to settle the matter. Both Burke and Bennett appealed that ruling to the Indiana Supreme Court.

The high court’s decision apparently will be the final judicial ruling in the case. Burke said Tuesday he has no plans to appeal the ruling. The next step would have been to appeal the case to the U.S. Supreme Court.

“I’ve done all I can do,” he said, sitting on the front porch of his Collett Park neighborhood home. “I don’t see any more steps.” Burke had said earlier he would not appeal an Indiana Supreme Court ruling. “I meant what I said.”

Bennett, speaking Tuesday in the mayor’s office, said the court’s decision will not change his agenda, but it may provide a little momentum for his administration to move forward. Some people in City Hall may have been worried about losing their jobs if he had lost the case. Others may just welcome the removal of uncertainty, he said.

“I’ve had a lot of people stop by and congratulate me,” Bennett said, adding that he also received calls from other local public officials and from elected officials around the state. “People were watching this,” he said.

Burke, a Democrat, indicated his political activities in Terre Haute may now be over. Political insiders told him that challenging the 2007 election result in court would be politically damaging to him, he said. And appealing the local court’s ruling was “political suicide … For me to have political aspirations now would be a little peculiar,” he said.

Bennett, a Republican, said he does not fault Burke for challenging the election. However, he still maintains he did not violate the Hatch Act when he ran for office.

“I’m not going to fault [Burke] for doing what he did,” Bennett said. “He had every right to do that. It had to play itself out through the legal system.”

Burke said he is not bitter and looks forward to finding a new role as a private individual that would allow him the opportunity to “fix things.” The enjoyable part of being mayor was finding a problem, assembling people to deal with the problem, and moving forward to try to solve the problem, he said. “That was more than fun. It was addictive.”



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









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