Published: June 13, 2008 11:32 pm         

Court agrees to hear oral arguments in Burke, Bennett case

TERRE HAUTE — The legal battle for control of the Terre Haute mayor’s office will be contested in a face-to-face showdown in front of the Indiana Court of Appeals next month.

The appeals court has agreed to hear oral arguments in the case pitting Mayor Duke Bennett against former Mayor Kevin Burke. The arguments are scheduled for July 8 in Indianapolis.

Lawyers for Burke requested the opportunity to argue their case in front of a three-judge appeals court panel earlier this year. Lawyers for Bennett did not object to the request and have asked that recordings of the arguments be made available online through the Indiana Court of Appeals Web site.

“We think [the oral arguments and Webcast are] a good opportunity for the people in Terre Haute to understand more concretely what the issues are,” said Bryan Babb of the Indianapolis law firm of Bose, McKinney and Evans.

Babb will make Bennett’s case to the court.

The appeals court only agrees to “hear oral arguments in a small percentage of cases and so we are glad that they are willing to hear it in this particular case,” said Amanda Couture, an attorney with the DeLaney and DeLaney law firm of Indianapolis, which is representing Burke.

Burke’s case will be argued in front of the three-judge appeals panel by Ed DeLaney.

Each side will have 30 minutes to make its case.

No new evidence is presented in an appeals case and no new witnesses are called. Judges typically ask questions during oral arguments and “the point of the [oral] argument is really to have a discussion with the judges,” Couture said.

When the court agrees to hear oral arguments it often means the judges want clarification on some matters, Babb said. And while he expects both sides to repeat the arguments they have made in their legal briefs, questions from the judges will determine what is discussed, he added. “We’ll go wherever the judges take us,” Babb said.

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. Bennett then appealed Bolk’s ruling that Bennett had been subject to the Hatch Act when he ran for mayor. This means the appeals court is hearing two appeals from one ruling.

This is “not just a dispute between two individuals. It’s a dispute that will affect an entire city,” Couture said. Burke is arguing that state law requires that Bennett be removed from office and Burke, as the person receiving the second-most votes, should be returned to power in City Hall.

One of the three judges who will hear the case is new to the Indiana Court of Appeals. Gov. Mitch Daniels named Judge Elaine Brown to the appeals bench last month. The other judges assigned to the case, Edward W. Najam Jr. and Carr L. Darden, were appointed by former Gov. Evan Bayh in the 1990s.

The attorneys for both sides have experience making oral arguments. DeLaney has argued before the appeals court several times and is arguing a case before the Indiana Supreme Court next Monday, Couture said. Babb has presented two oral arguments this month alone, he said.

“It’s the best thing I do as a lawyer,” Babb said. “It’s a great privilege to talk in front of that court.”

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