Published: January 07, 2009 12:33 am         

Bennett files response in mayoral battle

TERRE HAUTE — The duel for control of Terre Haute’s City Hall continued this week with the filing of yet another legal brief in the ongoing case of Burke v. Bennett.

Late Monday, attorneys for Mayor Duke Bennett filed a response to former Mayor Kevin Burke’s Dec. 12 request to advance the case to the Indiana Supreme Court.

Both Bennett and Burke requested the Supreme Court hear the case after the Indiana Court of Appeals ruled in November that neither man was eligible to sit as mayor. The court also called for a special election to settle the matter. Bennett filed his request on Dec. 15 to move the case to the Supreme Court.

Burke’s side now has 13 days to respond to Bennett’s Jan. 5 response, said Brian Babb, an attorney for Bennett. Burke’s attorney, Ed DeLaney, said he will file Burke’s response to Bennett’s Dec. 15 petition for transfer to the state Supreme Court today. Bennett will then have 13 days to respond to that brief.

Burke, a Democrat, contested Bennett’s eligibility to serve as mayor after the 2007 election, which Bennett, a Republican, won by 110 votes. Burke argued that, while still a candidate, Bennett was covered by the Hatch Act, a federal law that limits the political activity of federal employees and the employees of some not-for-profit organizations. While running for mayor, Bennett served as director of operations for the Hamilton Center, a not-for-profit mental health organization that operates a federal Head Start program.

In the response filed Monday, Babb argues for Bennett that Indiana law does not permit the mayor’s removal from office based on a post-election Hatch Act challenge. Babb also argues that, under previous judges’ rulings, the loser of an election cannot challenge a winner’s eligibility unless the ineligibility was known to the voters at the time of the election.

“It’s clear that we have a quite different view about whether or not the statute that says you’re disqualified has any meaning or not,” Burke attorney DeLaney said Tuesday, referring to the Indiana law that allows elected officials to be removed from office for certain violations.

While Indiana law lists violation of the Hatch Act as one of several grounds for challenging an election result, Babb argues that the Hatch Act portion of the law limits challenges to periods before an election takes place. The Hatch Act section of the law only covers “candidates” for office, not former candidates who have been elected, he said.

“You’re only a candidate before the election,” Babb said. “You’re not a candidate after the election,” he said.

In their decision handed down in November, a majority of the Indiana Court of Appeals disagreed with this argument saying that to limit Hatch Act challenges to pre-election periods would render the Hatch Act section of the Indiana law meaningless. But Babb disagrees, saying that a serious violation of the Hatch Act, such as a case in which a candidate was found to have bribed someone using federal money, could always be addressed after an election by a prosecuting attorney.

“Under no circumstances is this one of those cases,” Babb said, adding that Bennett has been accused of a “passive” Hatch Act violation, not an “active” one.

There is nothing new in the Bennett brief, Burke said Tuesday. “They just keep saying that he was not subject to the Hatch Act … and then they always say [even if he was] you didn’t catch him in time.”

Bennett said the brief filed Monday simply lays out his case once again, adding that he hopes the Supreme Court will act “as soon as they possibly can … We feel very good about our position.”

The Indiana Supreme Court has yet to decide whether it will take Burke v. Bennett . It could make that decision anytime after it receives the final briefs due around two weeks from today.

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