Published: May 28, 2009 11:56 pm         

Attorneys for Bennett, Burke present cases to Indiana Supreme Court

INDIANAPOLIS — Dozens of spectators filled about half of the seats in the Indiana Supreme Court Room on Thursday morning to listen to Burke v. Bennett, the case that could change Terre Haute’s leadership and set precedent for Indiana election law for years to come.

Lawyers for Mayor Duke Bennett and former Mayor Kevin Burke presented their cases to a panel of five state Supreme Court justices for about 20 minutes each. The justices peppered both lawyers with questions.

“I’m very pleased,” Burke said, immediately after the oral arguments were completed.

During the proceeding, both Burke and Bennett sat a few feet apart with their respective family members in the front row of the massive and ornate courtroom in Indianapolis.

Burke, the incumbent Democrat, lost the 2007 Terre Haute mayor’s race to Bennett, a Republican, by 110 votes out of about 12,000 cast. After the election, Burke challenged Bennett’s eligibility to serve as a candidate for office under Indiana election law.

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

Before taking office, Bennett served as director of operations for the Hamilton Center, a multicounty mental health organization that operates a federally funded Head Start program.

The Indiana Supreme Court is the third court to hear the Burke v. Bennett case. The case was first argued in Vigo County Superior Court before Judge David Bolk.

Bolk ruled that while Bennett had been subject to, and in violation of, the Hatch Act, he was no longer subject to it at the time he was to take office. The act, Bolk ruled, applies only to candidates and, at the time the case was heard, Bennett was no longer a candidate, but mayor-elect.

Burke appealed Bolk’s ruling that Bennett could assume office. Bennett later appealed Bolk’s ruling that the Hatch Act applied to him.

The case then traveled to the Indiana Court of Appeals, which also found Bennett in violation of the Hatch Act and ordered him to vacate the mayor’s office, pending appeal. However, the court also ruled that Burke could not take the mayor’s office because his Hatch Act complaint had come after the election was over.

The appeals court called for a special election to fill the mayor’s seat – a solution neither side liked.

During Thursday morning’s oral arguments, Justice Frank Sullivan Jr. asked most of the questions of both lawyers. Among his many queries, Sullivan asked Burke’s attorney why Judge Bolk was wrong to allow Bennett to take office in January 2008.

Edward O. DeLaney, of Indianapolis, answered that Bolk was wrong because the Hatch Act applied to Bennett, because he “violated [Indiana] statute by becoming a candidate.” As soon as Bennett registered as a candidate and signed a document saying he was qualified to seek office, he disqualified himself, DeLaney said. “That was the violation.”

Bennett’s attorney, Bryan H. Babb, also of Indianapolis, began his argument by quoting Bolk’s ruling in which the judge called Bennett’s connection to the Hamilton Center’s Head Start program “essentially nonexistent.” Babb also attacked the Hatch Act itself, saying the law and the many rulings it has spawned do “not make a lot of sense” and unnecessarily disqualify too many people from seeking office.

“We deal with laws that don’t make much sense every day,” Justice Sullivan responded to soft giggles in the courtroom.

When the arguments were finished, DeLaney and Babb both said they were pleased with the hearing.

“We’re asking the court to make a difficult decision,” DeLaney said.

It is unclear when the court will issue a ruling in the case. However, lawyers for both sides indicated they believe a decision could be handed down sometime this year.

“This is an important case,” Babb said, after the arguments. “But every case this court hears is important.”

Both Burke and Bennett have said they will not attempt to appeal the state Supreme Court’s ruling.



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