Thursday, November 13, 2008
Court Of Appeals Rules Terre Haute Mayor Ineligible To Serve
More than a year after former Terre Haute Mayor Kevin Burke challenged Duke Bennett's upset win in the city's mayoral election, a divided Court of Appeals ruled that Bennett's job with the nonprofit Hamilton Center made him ineligible to be a candidate for Terre Haute mayor under the federal Hatch Act. The Court of Appeals 2-1 decision (posted at the Indiana Law Blog) invalidated Bennett's election, declared a vacancy and ordered a special election to be conducted to take his place. I would anticipate an appeal of the ruling by Bennett to the Indiana Supreme Court, although an online report by the Terre Haute Tribune-Star does not indicate whether that decision has been made. It seems to me that Judge Najam has the better argument of how the law should apply in this case. He contends that the losing candidate, Burke, had no right to seek Bennett's removal based upon long-standing common law applied by our Supreme Court where there is no evidence the voters who supported the winning candidate had any knowledge of the winning candidate's ineligibility to hold office. The election, Najam notes, could be declared void, but only an action of the State could result in the removal of the elected official from office. Here, the Court of Appeals took it upon itself to remove Bennett from office and order a special election. If this ruling stands with respect to the Court's interpretation of the Hatch Act, then there are several Indianapolis city-county councilors who should be similarly booted from their public office on the same ground.