By Deb Kelly
TERRE HAUTE — The election contest between former Terre Haute Mayor Kevin Burke and current Mayor Duke Bennett could continue for months, but according to two of the three judges for the Indiana Court of Appeals who decided the case, neither man is currently eligible to serve as mayor.
Judges Carr L. Darden and Elaine B. Brown, who wrote the 45-page majority opinion, concluded that Bennett was subject to the Little Hatch Act, making him ineligible as a candidate during his 2007 campaign, and concluded that Burke could not win an election in which voters were not fully informed of Bennett’s ineligibility.
The legal team for Bennett, along with dissenting appeals court Judge Edward W. Najam, still claims that any post-election challenge by Burke was invalid, and the election of Bennett should stand.
The majority found that neither candidate brought issues of Bennett’s eligibility to voters’ attention prior to the election.
“We fault both candidates for not doing so in this case,” the opinion states.
Because voters were unaware of Bennett’s ineligibility, the court determined that all votes in the 2007 mayoral election would have to be nullified equally, meaning that Burke could not have won, even if Bennett were disqualified.
The Little Hatch Act, 5 U.S.C. section 1502(a), provides in part that, “[a] state or local officer or employee may not … be a candidate for elective office.”
After a lengthy discussion of Bennett’s employment as director of operations at Hamilton Center Inc. from 2005-2007, it was determined that: the Little Hatch Act applies to the Hamilton Center because of its responsibility for planning and coordinating Head Start programs; that Bennett was considered a state or local employee because Hamilton Center is a state or local agency by virtue of its work with Head Start; that his work at Hamilton Center constituted his principal employment; and that it was in connection with an activity financed in part by federal funds.
The court chose not to distinguish each of Bennett’s duties within the Hamilton Center, instead finding that “as a normal and foreseeable incident to his principal position … he performs duties in connection with an activity financed in whole or in part by federal funds.”
The determination that Bennett was subject to the Little Hatch Act, and that he violated it by becoming a partisan candidate for office, were not the final factors in deeming him ineligible, however.
One of the issues contested at the appeals level was whether Bennett was ineligible at the time he assumed office, or just during the campaign. Bennett argued that he was eligible to assume office because any ineligibility there might have been during his campaign was no longer relevant when he took office (because he was no longer employed at the Hamilton Center).
The trial court in Vigo County reasoned that Bennett was mayor-elect and no longer a candidate at the time the challenge occurred.
The appeals court disagreed.
“Because Bennett was disqualified from even being a candidate … and, therefore, was ineligible to assume office,” the court wrote.
After determining Bennett’s ineligibility, the court turned to Burke’s assertion that he should be elected as “the qualified candidate who received the highest number of votes,” based on Indiana state law.
The court disagreed, reasoning that if all the voters who cast ballots for an ineligible Duke Bennett — without knowing he was ineligible — lost their votes, then all the other voters who cast ballots in good faith would also have to lose their votes. The entire mayoral election, then, would have to be nullified.
“It is incumbent upon the candidates to have issues of eligibility brought to the voters’ attention prior to an election,” the court wrote. “The voters must be aware of a candidate’s ineligibility in order to nullify the votes without nullifying all votes equally … [and] even though Bennett was ineligible, Burke does not have a right to the office of mayor of Terre Haute.”
The dissenting opinion of Judge Najam states, “Candidates have a duty to discover and disclose eligibility issues before an election so that the voters can take those issues into account when casting their ballots.”
The dissent adds that a candidate who knows of a “bona fide eligibility issue” and who fails to bring it up before the election is prohibited from raising that issue in a post-election challenge.
The majority disagreed with Najam’s claim, saying that the case he cited – Oviatt v. Behme, 1958 — “gave us only two options … : we must either count all votes cast in good faith, including those cast for a disqualified candidate, or count none of the votes cast in good faith … because there was no evidence that any of the voters were aware of Bennett’s disqualification.”
The majority continued, “If we count all the votes cast, then we render all statutes enacted by the legislature disqualifying a candidate meaningless … We would be indicating that these statutes never come into play when an election is challenged after the fact because we would be saying that the only question to be asked after an election is whether the voters believed the candidate was disqualified.”
The court stated simply, “The legislature has allowed challenges both before and after an election, and the legislature has not excluded the qualification statutes from post-election challenges.”
Because the court determined that neither Burke nor Bennett is currently eligible to be mayor of the city, it was concluded that a vacancy exists — however, that vacancy will not become a reality until the next step in the appeals process is undertaken. The Bennett team has vowed to go to the Indiana Supreme Court; it has 30 days to do so.
Joel M. Schumm, professor of law at the Indiana University School of Law in Indianapolis, and an expert on the Indiana judiciary, said nothing will happen with the mayor’s office until after the losing party goes through the appeals process. The opinion is nonbinding until that process is complete, he said.
The Indiana Rules of Appellate Procedure state, “The trial court … and parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified.”
The rule further states that the opinion does not become certified until after the time expires for the parties to petition for rehearing or transfer (if they choose not to), or until the Supreme Court disposes of the case, either through denying the petition for transfer or ruling on the case.
Schumm said the losing party has 30 days to petition for a rehearing or for a transfer.
“If they ask for a rehearing, and it’s denied, then they have another 30 days to file a petition to transfer [to the Supreme Court],” Schumm said. Bennett may choose to skip the petition for a rehearing, and directly petition for a transfer to the Supreme Court.
Schumm added, “Ten percent of the time, the Indiana Supreme Court will take a case if the parties petition, and if they decide to hear it, more likely than not they’re going to reverse what the Court of Appeals did.
“Sometimes they may take it because it’s an important issue and they want to issue a ruling on it because it affects a lot of cases,” Schumm said.
The complete text of the Court of Appeals opinion is available at www.in.gov/judiciary/opinions/pdf/11130801ebb.pdf.
Deb Kelly can be reached at (812) 231-4254 or email@example.com.