Published: January 07, 2008 11:34 pm         

Indiana’s high court could hear Burke’s case

Move would bypass state Court of Appeals

TERRE HAUTE — Attorneys for former mayor Kevin Burke have moved for the Indiana Supreme Court to hear the appeal in Burke’s challenge to Mayor Duke Bennett’s candidacy.

Burke’s counsel on Friday filed the motion, a day after Burke formally appealed the Dec. 21 ruling that allowed Bennett to take office, the Indiana Clerk of the Courts online docket reports. If approved, the move would transfer jurisdiction to the high court.

“This set of circumstances presents a rare case where it would benefit the public to have the Supreme Court accept jurisdiction over the pending appeal,” Burke attorneys wrote in the transfer motion, “despite the fact that the matter would otherwise be within the jurisdiction of the Court of Appeals.”

Bennett attorney James Bopp Jr., said that the motion did not seem justified.

“Well, the normal process is that it goes through the Court of Appeals, and only the most important cases are ultimately determined by the Supreme Court,” he said, “and I really doubt that the issues involved here merit that.”

The motion continues the case in which Burke contends that the Hatch Act and Indiana law should have prevented Bennett from taking office. The Hatch Act limits the political activity of employees of some not-for-profits receiving federal money, while an Indiana law prevents a candidate subject to the Hatch Act from taking office.

Before becoming mayor, Bennett served as director of operations for Hamilton Center Inc., a not-for-profit that receives federal funding for its Early Head Start program.

But Bolk ruled that since Bennett was the mayor-elect and not a candidate, he was not subject to the state law Burke contended disqualified him from taking office, even though Bolk also ruled that Bennett was subject to the Hatch Act.

The motion for the Supreme Court to hear the appeal was pending before the court Monday afternoon, and it was not immediately known how long it would take for the court to decide if it will hear it, said Glynis Pierce, office administrator for the Clerk of the Supreme Court.

Burke and his attorneys made the move because it was inevitable for the case to reach the state Supreme Court, the former mayor said Monday.

“So you tend to make the decisions based on what if you win, not what you do if you lose,” Burke said, “and we were looking at, if the appellate court reverses the Bolk decision, then we knew we’d end up in the Supreme Court anyway, so why not just go there and see if we can do it in one trip?”

Bennett said that he was informed of the motion, though he had not read the filing and had not discussed it with an attorney.

“There must be an obvious strategy there for that,” Bennett said, “and me not having any experience, or very limited experience with this process, I haven’t had any counsel yet on why that would be a better approach for them.”

Bopp said that Burke’s side “sat around and waited to file their appeal, and now they want to hurry things up.”

“That doesn’t make sense to me,” he said.

Burke attorney Ed DeLaney could not immediately be reached for comment Monday.

Burke said he told his attorneys that he wanted a “definitive answer” to the question of Bennett’s eligibility. He also said that he made the decision based upon what is “in the ultimate best interest of the” city, he said.

“I know that my opponents are going to make a great deal of noise about this not being good for Terre Haute,” Burke said, “and I think the important word to remember here is ‘ultimately’ what’s in the best interest for Terre Haute.”

Bennett said that his thoughts on the situation have not changed since the initial appeal was filed late last week.

“Just the sooner we get this over with, the better,” he said of the situation, “and I’m just going to leave it in the attorneys’ hands.”



Austin Arceo can be reached at (812) 231-4214 or austin.arceo@tribstar.com.