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Thursday, November 13, 2008

Ind. Decisions - Court of Appeals nullifies 2007 mayoral election

In Kevin D. Burke v. Duke Bennett, a 59-page, 2-1 opinion (including a dissent beginning on p. 46), Judge Brown writes:

Kevin Burke appeals the trial court’s denial of his petition contesting the election
of Duke Bennett for mayor of Terre Haute. Burke raises one issue, which we revise and restate as:

I. Whether Bennett was ineligible under Indiana’s election contest statutes; and

II. Whether Burke must be declared elected pursuant to Ind. Code § 3-12-8-17.

On cross appeal, Bennett raises one issue, which we revise and restate as whether Bennett was subject to the Little Hatch Act, 5 U.S.C. § 1502. We reverse and remand. * * *

Because Burke has standing to contest the election and Bennett is ineligible, we conclude that a vacancy exists. In light of this conclusion, we direct the parties’ attention to Ind. Code §§ 3-10-8, which govern special elections. See Ind. Code § 3-10-8-1 (“A special election shall be held in the following case: . . . . (4) Whenever a vacancy occurs in any local office the filling of which is not otherwise provided by law.”). We order the trial court to issue a writ of election pursuant to Ind. Code § 3-10-8-3.

For the foregoing reasons, we reverse the trial court’s denial of Burke’s petition contesting the election for mayor of Terre Haute, and remand for proceedings consistent with this opinion. Reversed and remanded.

DARDEN, J. concurs
NAJAM, J. dissents with separate opinion [that begins] I respectfully dissent. The majority concludes that Bennett was subject to and violated the Little Hatch Act and, therefore, was ineligible to assume or be a candidate for the office of mayor of Terre Haute. See Ind. Code § 3-8-1-5(c)(6). Next, the majority concludes that, under our Supreme Court’s opinion in Oviatt v. Behme, 238 Ind. 69, 147 N.E.2d 897 (1958), Burke is not entitled to that office. But the majority then disregards Oviatt and holds that Burke is not required to establish a right to the office and is entitled to relief on his complaint in the form of a special election.

The Terre Haute Trib-Star posted a story late this morning on the opinion. Some quotes:
TERRE HAUTE — A news conference has been called for 4 p.m. today in the mayor's office in city hall, following an Indiana Court of Appeals ruling this morning in favor of former Terre Haute Mayor Kevin Burke who had challenged Republican Duke Bennett's eligibility in the 2007 election.

The court by a 2-to-1 decision stated that Bennett was ineligible to take office and that Burke is not entitled to fill that post as a result of the ruling, because voters were unaware of Bennett's ineligibility. Thus, the votes cannot be counted and the court ruled the office vacant.

Here is a long list of ILB entries on the mayorial election dispite.

Posted by Marcia Oddi on November 13, 2008 12:30 PM
Posted to Ind. App.Ct. Decisions