News From Terre Haute, Indiana

November 20, 2007

Mayoral election challenge gets court date

Mayor-elect Bennett ordered to appear at pre-trial conference

By Austin Arceo

TERRE HAUTE — A judge on Tuesday scheduled a conference for attorneys to discuss the election challenge that Terre Haute Mayor Kevin Burke hopes will win him a second term.

Vigo Superior Court Division 3 Judge David Bolk scheduled a pre-trial conference for 2 p.m. Nov. 28 for the petition filed on behalf of Burke, who seeks to disqualify Mayor-elect Duke Bennett based on the Hatch Act. Bennett won the mayoral election earlier this month after defeating Burke by 107 votes, less than 1 percent of all ballots cast in the race.

Burke, in a separate petition, has filed for a recount.

The petition challenging Bennett’s eligibility states that Burke should be declared the winner because he received the second-highest number of votes.

“This appears to be the next step in the process,” Burke said of the scheduled conference, “and I’m certainly encouraged that we’re looking at doing this next week because I think the entire community is anxious for the entire issue to be settled.”

Judge Bolk also issued an order for the mayor-elect to appear at the conference.

Burke’s petition alleges that Bennett was ineligible for candidacy because his employer, Hamilton Center Inc., receives federal funding, including money for its Early Head Start program. The Hatch Act limits the political activity of employees of some government agencies.

It also affects employees of certain not-for-profits based upon the federal funds the organizations receive. A U.S. Office of Special Counsel Web site lists Head Start money as an example of such funds for which a receiving agency could be subjected to the Hatch Act.

Bennett has said that he checked with attorneys before he first ran for mayor in 2003, and they were of the opinion he would not be in violation of law — including the Hatch Act — by running.

Burke’s petition states that Bennett is subject to the Little, or “Mini,” Hatch Act, which is considered part of the Hatch Act, said Jim Mitchell, spokesman for the Office of Special Counsel.

Attorney Chou-il Lee, who represents Bennett, thinks that the office should investigate Bennett’s situation.

“They’re the ones who are responsible under federal law to investigate and prosecute if there’s a violation of the Hatch Act,” Lee said, “and so basically, those guys are the experts.”

But Burke’s attorney Ed DeLaney said they are “trying an issue under Indiana law” in an Indiana court.

The challenge surprised James McDowell, a political science professor at Indiana State University. He said there have been challenges regarding a candidate’s residence in a City Council district, but nothing like Burke’s petition.

“Frankly, I have never heard of anything like this, where you challenge the eligibility after the fact,” McDowell said.

Howey Political Report publisher Brian Howey said that if the Burke campaign knew of a potential violation, they “probably should’ve used that in the campaign” to inform people.

“This is new territory,” Howey said. “I don’t believe, since I’ve been writing politics” since 1985 “that I’ve seen anything” like this.

If Burke wins, McDowell said that “there might always be some lingering doubt” about whether he really won. But if Bennett wins, it might be settled on a technicality, which could weaken his ability to deal with things, McDowell said.

“There are all sorts of scenarios you can conjure up,” McDowell said, “but I guess a blanket statement [is] this is not going to enhance the image of the community, whoever is the victor.”

Meanwhile, attorneys and the principals in the election will continue to prepare for the conference. Burke was not the only person pleased that Bolk scheduled the conference.

“I look forward to getting this thing moving, and so I’m glad that we’re having this pre-trial conference on the 28th …,” Bennett said in a phone message, and I “just look forward to having our day in court to explain our side and get this thing resolved.”

Austin Arceo can be reached at (812) 231-4214 or