Published: May 27, 2009 11:09 pm         

Burke v. Bennett hits Indiana's high court today

Panel of five justices to hear oral arguments

TERRE HAUTE — What should be the final round of the ongoing Burke v. Bennett legal wrestling match for control of City Hall is set for today in Indianapolis.

Both sides in the 18-month-old struggle will get 20 minutes to make their cases to a panel of five Supreme Court justices. The hearing is scheduled to begin at 10:05 a.m. in the state capital.

“I feel like we’re as prepared as we can be,” said former Terre Haute Mayor Kevin Burke on Wednesday. “It’s very clear what we’re asking for and I feel good about that.”

Burke, a Democrat, lost the 2007 mayor’s race to Mayor Duke Bennett, a Republican, by 110 votes out of about 12,000 cast. Burke then challenged the election result charging Bennett was ineligible to run under Indiana law.

Indiana law disqualifies political candidates who are subject to the Hatch Act, a federal law that limits the political activities of federal employees and some not-for-profit employees whose organizations receive federal funding.

Before the election, Bennett was director of operations for the not-for-profit Hamilton Center, which operates a federally funded Head Start program.

Last November, the Indiana Court of Appeals ruled that Bennett had indeed been ineligible to run for mayor and ordered Bennett to vacate the mayor’s office. It also ruled that Burke was ineligible to take office, saying his challenge to the 2007 election came too late. To fill the office, the appeals court called for a special election — something neither side favored.

Bennett and Burke both asked the state Supreme Court to take the case on appeal, which the high court last month announced it would do.

“I’m hopeful that this will be the last stage,” Bennett said Wednesday. “The quicker we can get this behind us, the better for all of us.”

Burke is arguing that state law requires Bennett be removed from office and the candidate receiving the second-highest vote total — Burke — be installed as mayor.

Bennett, on the other hand, argues that his connection to Hamilton Center’s Head Start program was minimal and that it would be “unjust” to overturn an election result based on those grounds. Bennett is also arguing that Indiana should set its own Hatch Act eligibility standards. Under the Hatch Act, many Hoosiers, including letter carriers, are ineligible to run for partisan political office.

“It’s one of those thorny cases,” said Luis Fuentes-Rohwer, a law professor at the Maurer School of Law at Indiana University. “We are told that judges are supposed to simply read the law and apply it,” he said. “But what if a plain reading of the law results in overturning an election based on the Hatch Act, a law most people know little about?”

The Supreme Court will have to ask itself, “Do you really want to do this,” Fuentes-Rohwer said.

Whatever happens, the Burke v. Bennett case will likely set legal precedent in Indiana for years to come. “The people of Terre Haute are doing the state a service,” Fuentes-Rohwer said. “We have to find out sometime” if elections can be overturned based on post-election Hatch Act challenges, he said. “It might as well be now.”



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

     

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