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Wednesday, July 09, 2008
Ind. Courts - More on: COA will hear oral arguments today in dispute over Terre Haute mayor's office
Arthur E. Foulkes of the Terre Haute Tribune-Star reports today on yesterday's oral arguments before the Court of Appeals in the case of Burke v. Bennett. Some quotes:
The Indiana Court of Appeals listened to arguments Tuesday in the case of Burke v. Bennett – the legal battle for the job of mayor of Terre Haute.The story also quotes questions asked by members of the panel:In the approximately 90-minute oral argument, former Mayor Kevin Burke was represented by Ed DeLaney, an Indianapolis attorney. Mayor Duke Bennett was represented by Indianapolis-based attorney Bryan Babb. * * *
Bennett, before becoming mayor, was director of operations at the not-for-profit Hamilton Center, which operates a federally funded Head Start program.
Burke, who lost the November election by 110 votes to Bennett, believes the Hatch Act and Indiana law require that he should be returned to the office of mayor.
“My client is not embarrassed to say the law requires this result,” DeLaney said to the three appeals court judges.
Bennett’s attorney, on the other hand, argues, as Judge Bolk ruled, that Indiana law only applies the Hatch Act to candidates for office, not sitting mayors. Babb also argued that Bennett’s role at the Hamilton Center had very little to do with the organization’s Head Start program.
“He was not employed by Head Start. He did not have a regular, foreseeable role with Head Start. He did not have supervisory control over Head Start funds,” Babb told the judges.
Two key areas of disagreement in the case are whether the Hatch Act applies to any candidate – with the exception of sitting officeholders – involved in any way with federal funds and whether Hatch Act violations, under Indiana law, are grounds for overturning an election result.
While federal Hatch Act violation penalties do not include removal from office, Indiana’s “legislators decided those [federal] sanctions were not enough,” DeLaney told the court.
Federal law states anyone “employed by a state or local agency whose principal employment is in connection with an activity which is financed in whole or in part” by federal money is subject to the Hatch Act. However, Babb argued that there are cases where the degree of involvement in a federally funded program has been taken into account in deciding whether the Hatch Act applies to individual candidates.
The court should rule that the Hatch Act only applies to people who directly receive or direct the spending of federal money, Babb said, adding that otherwise, “we’re going to lose a whole lot of qualified candidates” for public office.
Each of the appeals court judges asked questions of both lawyers. Presiding judge Edward W. Najam Jr. focused many of his questions around whether Indiana’s law applied only to candidates or could be used to sanction an elected official. He also asked several questions about the extent of Bennett’s involvement with Head Start.Watch the entire oral argument here, via the Court's site.Judge Elaine Brown asked Babb why the Bennett team did not reference a 1958 Indiana Supreme Court case, which she said made a strong argument for Bennett’s side. She also asked why Burke and Bennett both failed to have the Office of Special Counsel investigate Bennett’s eligibility prior to the November election.
Judge Carr L. Darden asked Burke’s attorney about Bennett’s role at the Hamilton Center and asked Babb why Bennett didn’t seek pre-election advice from Indiana or federal election officials.
Posted by Marcia Oddi on July 9, 2008 08:35 AM
Posted to Indiana Courts