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Sunday, December 09, 2007
Ind. Decisions - More on: Supreme Court denies Bopp motion for an emergency writ regarding the middle initial issue in the recount
Updating this ILB entry from Nov. 30th, where the Supreme Court denied the request for an emergency writ., but determined that the "this original action warrants additional briefing", Austin Arceo of the Terre Haute Trib-Star reports:
TERRE HAUTE — A century of Indiana case law supports Mayor Kevin Burke’s position in an issue before the state Supreme Court, Burke’s attorneys wrote in a brief filed Friday.Burke attorney Ed DeLaney filed a brief opposing those filed by James Bopp Jr., the attorney for Mayor-elect Duke Bennett. Bopp on Nov. 29 filed mandate actions with the Indiana Supreme Court to overrule Judge David Bolk, of Vigo County Superior Court Division 3. Bolk had earlier denied Bopp’s motions to dismiss Burke’s request for a recount and to challenge petitions the incumbent filed after he lost the election to Bennett last month.
Since Burke’s petitions failed to mention Bennett’s middle initial, Bopp argues, they do not comply with state law to list candidates as they appear on the ballot.
“Such a reading is not unreasonable and is consistent with prior Supreme Court rulings addressing name requirements in petitions for contests and recounts,” two of Bopp’s Supreme Court briefs state.
DeLaney, in his brief, cites a 1908 case in which the Supreme Court stated that an absent middle initial, or even a wrong one inserted in someone’s name would not “‘create a misnomer.’”
“The recount and the contest are worthy of being decided on their merits,” the DeLaney brief states, “instead of being dismissed over a trivial technicality.”
Bopp had the chance to review the DeLaney filing, which he said is “a lot of creative legal arguments trying to avoid the letter of the law.”
“So they’re citing cases that involve other statutes and other legal issues,” Bopp said, “so this doesn’t have anything to do with the statute at hand.”
DeLaney said that the filing meets the requirements of the statute, and that the situation is not about “gotcha,” but who is qualified to be the next mayor.
“We think that’s what ought to be discussed,” DeLaney said. “Mr. Bennett and his lawyer don’t want to talk about whether he is” qualified.
DeLaney’s filing also claims that Bopp had filed the wrong type of motion for the dismissal.
The final deadline to file a brief with the Indiana Supreme Court was noon Friday. Bopp said the court will likely rule on his motions this week.
Posted by Marcia Oddi on December 9, 2007 09:37 AM
Posted to Ind. Sup.Ct. Decisions