It's not over yet: Bennett says legal team reviewing options

By Arthur E. Foulkes
The Tribune-Star

TERRE HAUTE November 14, 2008 12:18 pm

— Mayor Duke Bennett faced a room full of news media Thursday and tried to assure the people of Terre Haute he remains fully in charge in City Hall.
Bennett used the 15-minute media conference, which was attended by more than a dozen reporters in his approximately 350 square-foot office, to suggest he plans to appeal Thursday’s decision handed down by the Indiana Court of Appeals in his legal battle with former mayor Kevin Burke.
“We have an opinion now from the Court of Appeals and the next step — as many people thought might happen anyway — we’ll go to the [Indiana] Supreme Court.”
Bennett said his legal team is still looking at other possible options, but he made clear the most likely next step in the case is an appeal to the state’s highest court.
“Now we’re in a situation where we need to take that next step ourselves to make sure that the Supreme Court of the State of Indiana is the most likely place for this to land and we’ll let them decide how these kinds of things should be handled in the State of Indiana,” Bennett told reporters.
Bennett set the media conference for 4 p.m. Thursday after news broke around 9 a.m. that the Court of Appeals had made a ruling in the Bennett v. Burke case. The court ruled that neither Bennett nor Burke should sit in the mayor’s office and the city should hold a special election to fill the top City Hall position.
On three different occasions during the news conference, Bennett noted that the Court of Appeals is asking for a solution that neither side – Burke or Bennett – wanted. Burke was asking the court to return him to the mayor’s job. Bennett was asking that Burke’s challenge be rejected.
Bennett won the Terre Haute mayor’s race last November by 110 votes out of about 12,000 cast. Burke later challenged Bennett’s eligibility to take office based on the Hatch Act, a law that limits the political activity of federal employees and employees of some not-for-profit organizations that receive federal money.
Vigo County Circuit Court Judge David Bolk ruled against Burke in December, allowing Bennett to take office. However, Bolk also ruled that Bennett had been subject to the Hatch Act when he ran for office. Burke later appealed Bolk’s decision to allow Bennett to take office and the Court of Appeals agreed in its ruling released Thursday that Bennett had indeed been subject to the Hatch Act when he ran for office.
Another point Bennett tried to drive home to members of the media was that a special election would be expensive for Terre Haute taxpayers.
“You know, it’s real expensive to run an election,” Bennett said as five video cameras, some broadcasting live on local TV stations, stood just inches from his desk. The most recent city election cost $580,000, Bennett said. “If there is another city election, it’s going to be a very large burden financially on the taxpayers,” he said.
Bennett tried to downplay Thursday’s court decision calling it an “opinion” – not a ruling and referring to this as “just another step in the legal process.” Bennett also noted that one of the three judges on the appeals court panel wrote a dissenting opinion (favorable to him).
“It’s a very harsh dissenting opinion that was more on our court,” Bennett said.
When asked if he wished he had done more to ensure his eligibility before running, Bennett said he ran for mayor in two elections in 2003 and 2007 without being challenged. The challenge to his candidacy only came after he won, he said.
“Had it been brought up before the election, I would have quit my job and there wouldn’t have been an issue,” he said.
Bennett said his legal team still believes only the federal Office of Special Council can make a ruling as to whether the Hatch Act applied to him. “Technically, they are the only ones that can rule on this anyway,” he said.
Bennett also used the media conference to try to assure the people of Terre Haute he remains in charge. If he were to be incapacitated by health problems or death, Leslie Ellis, the city controller, would assume the mayor’s duties, he said. But, in this case, it “would be extremely disruptive to take me out of this position and put somebody else in for a while and then have an election if it’s going to happen in a very short period of time.”
If an election is called for, Bennett said he will definitely be a candidate. He also indicated he is happy to be able to fight to keep his job. “It’s just the beginning of my fight because to this point all I’ve done is defend myself. Now is time for me to take action and fight for this position.”
There is no need for Bennett to seek a stay of the court’s decision, he said. He has 30 days to appeal to the Supreme Court, he said. In the meantime, nothing changes, he said.
“We’ll continue to move forward,” Bennett said. “I won the election. I won the recount. I won the local hearing.” This “is not nearly the final stop.”

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

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