Published: November 13, 2008 11:10 pm         

Neither Burke, Bennett seem surprised by ruling

TERRE HAUTE — While the 2007 Terre Haute mayoral election has been over for a year, its results are still uncertain.

Yet the city may have gotten one step closer Thursday when the Indiana Court of Appeals handed down a decision in the case between Mayor Duke Bennett and former Mayor Kevin Burke — there is no winner.

In a 2-1 ruling, the court ruled neither former Mayor Kevin Burke nor current Mayor Duke Bennett should occupy the seat and that a special election should take place to determine who should.

“They [Court of Appeals] gave an opinion, and it’s going to go to the Supreme Court,” Bennett said. “So the final ruling is going to come from there, whenever that happens.”

Though Bennett won the race by 110 votes last November, Burke challenged his win, stating Bennett was ineligible to run because he was in violation of the Hatch Act. The law limits federal employees and employees of not-for-profits that receive federal funding to run for any political office.

Before becoming mayor, Bennett was the director of operations the Hamilton Center Inc., which received federal funding for its Head Start program.

Bennett believes he will remain mayor until a decision from the Indiana Supreme Court is handed down, he said.

“This is kind of uncharted territory,” he said. “Nobody really knows what could happen.”

His attorney, Bryan Babb of the Bose, McKinney and Evans law firm, said the decision “means nothing. It’s a non-final, nonbinding order from two members of the Court of Appeals,” and one member of the Appeals Court vigorously disagreed.

Babb echoed Bennett’s belief he will remain mayor.

“This is a nonbinding ruling that doesn’t change a thing,” he said. “It’s not binding until we’ve exhausted our appeal rights.”

Burke, however believes the decision is clear.

“I think it’s very clear of what the judges have said so far. This is four judges now that have said Duke Bennett is subject to and in violation of the Hatch Act,” he said. “Now then, what’s the remedy? The remedy that the law states is a very harsh one. Judge Bolk and the three appellate judges don’t agree with that remedy and they’ve now said that it needs to have a special election.”

“I wish I had all the answers as to what that means, he added, “but I will be meeting with my attorneys in the next few days for them to help me understand and sew some handles on the 59 page decision.”

Ed Delaney, Burke’s attorney, couldn’t offer a comment Thursday, but may have something to offer today.

“For the moment, I’m digesting the decision and conferring with my client,” he said in a voice message.

As far as the decision, neither Bennett nor Burke seemed surprised.

“You knew this day would come at some point,” Bennett said. “It’s another step in the process. Of course, you always hope you get a ruling in your favor. In this case, I guess I’m not surprised we’re moving on. It’s complicated enough that no matter what happens, it was likely to move on to the next step. We’ve been waiting to get this stop out of the way so we can take it to the next step and eventually reach the end of the chain here.”

For Burke, the only surprising aspect of the decision was the call for a special election, he said.

“Calling for a special election surprised us because it’s not in the law. The fact that they found that Duke had violated and broke state and federal laws didn’t surprise us, that’s pretty obvious,” he said. “We knew all along that the remedy was a harsh one, so from my perspective, I feel like they’ve kind of cut the baby in half and said do-overs.”

If it does come down to another election, both Burke and Bennett said they are ready for it.

“One of the things that has been very encouraging to me is the support I’ve received even when I lost the election. Of course you get a lot of support when you win, but for me to get the kind of support and encouragement that I have over the last year has truly been uplifting and that’s what’s kept me in this,” Burke said. “If this was just about me, I would have given up a long time ago, but the people who are supporting me, they keep me going and if we get to have another election and that means another campaign, so be it. We’ll get after it.”

Since news of the decision broke, Bennett said he had been receiving calls and support throughout the day.

He said the calls were “all positive … just saying, ‘Hey, this is just a temporary setback’ kind of thing. Just wanting to be real supportive, people offering to pay my legal expenses, just all kinds of positive feedback.”

Both men were confident the voters would favor them.

“I think for the voters, if this comes to a special election, it’s placed it back in the voters’ hands and that doesn’t frighten me and that doesn’t trouble me,” Burke said. “I have no problem with it being up to the voters. I just want the rules followed.”

Having been in office for nearly a year, Bennett said he hopes the voters would see a reason to elect him.

“… Now they can measure my performance, I’ve been in office for a while, and I would like to think that I would have a good shot at winning again,” he said. “It’s hard to beat an incumbent and so now at least I’ve got a record that’s been very positive, from my perspective at least, and I think I’d be in a great position to win again.”

Reporter Sue Loughlin contributed to this story.

Crystal Garcia can be reached at (812) 231-4271 or crystal.garcia@tribstar.com.