ATTORNEYS FOR APPELLANT/ ATTORNEYS FOR APPELLEE/CROSS-APPELLANT
CROSS-APPELLEE
Edward O. DeLaney Terry R. Modesitt George T. Patton, Jr.
Amanda Couture Chou-il Lee Bryan H. Babb
DeLaney & DeLaney LLC Modesitt Law Offices, P.C. Bose McKinney & Evans LLP
Indianapolis, Indiana Terre Haute, Indiana Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Jun 16 2009, 11:59 am
Indiana Supreme Court
_________________________________ CLERK
of the supreme court,
court of appeals and
tax court
No. 84S01-0904-CV-148
KEVIN D. BURKE, Appellant-Cross-Appellee (Petitioner below),
v.
DUKE BENNETT, Appellee-Cross-Appellant (Contestee below).
_________________________________
Appeal from the Vigo Circuit Court, No. 84C01-0711-MI-145
The Honorable David R. Bolk, Judge
_________________________________
On Transfer from the Indiana Court of Appeals, No. 84A01-0801-CV-2
_________________________________
June 16, 2009
Dickson, Justice.
Duke Bennett became the Mayor of Terre Haute, Indiana, after defeating the incumbent,
Kevin Burke, in the November 6, 2007 general election. On November 19, 2007, Burke filed
this action to contest the election, asserting that Bennett was ineligible. Following a bench trial,
the trial court rejected Burke's challenge and declared Bennett elected as the qualified candidate
who received the highest number of votes. The Court of Appeals reversed and remanded for a
new election. Burke v. Bennett, 896 N.E.2d 505 (Ind. Ct. App. 2008). We granted transfer and
now affirm the trial court's confirmation of Bennett's election as Mayor.
Burke challenged Bennett's election, seeking the remedy provided by Indiana Code § 3-
12-8-2, which authorizes an election to be contested on various grounds, subsection (1) of which
is that "[t]he contestee was ineligible."1 Such action may be brought within fourteen days after
election day by "[a] candidate who desires to contest an election or a nomination." Ind. Code §
3-12-8-5(a). Burke's claims that Bennett was ineligible rested exclusively on the Indiana
disqualification statute, § 3-8-1-5(c), and its references to the federal Little Hatch Act. Burke
claimed that Bennett's pre-election employment as Director of Operations at the Hamilton
Center, a not-for-profit community mental health center headquartered in Terre Haute and a
Head Start grant recipient, made Bennett subject to the Little Hatch Act, 5 U.S.C. § 1501(4), and
thus disqualified him from assuming or being a candidate for elected office pursuant to the
Indiana disqualification statute, Ind. Code § 3-8-1-5(c)(6)(A).
The trial court, while finding that Bennett's "functions in connection with the Hamilton
Center's Early Head Start program" subjected him to the Little Hatch Act, nevertheless
concluded that under the Indiana disqualification statute Bennett could not be disqualified
because, as the mayor-elect, he was no longer a candidate when the election contest was filed
and because, "[a]t the time of taking mayoral office, Bennett will no longer be employed at the
Hamilton Center," and thus not subject to the Little Hatch Act. Both parties appealed, disputing
the aspects of the trial court order adverse to them. The Court of Appeals reversed, concluding
that Bennett had been ineligible to be a candidate and that this ineligibility prevented him from
assuming office, but, rather than declare Burke to be the elected mayor, held that the resulting
vacancy should be filled by a special election. Both Burke and Bennett sought transfer. Burke
opposes a special election and seeks to be directly certified as Mayor. Bennett disputes the Court
of Appeals findings regarding the application of the Little Hatch Act and alternatively argues that
long-standing Indiana law prevents an election loser from upsetting the election results on
grounds of an alleged ineligibility unknown to the voters.
The parties disagree on whether, during the pre-election campaign, the connection
between Bennett's work for the Hamilton Center and its Head Start program was sufficient to
1
This statute lists additional grounds for an election contest, but the trial court found that Burke presented evidence
only in support of his claim that Bennett was ineligible. Appellant's App'x at 9.
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subject him to the candidacy limitations of the Little Hatch Act. We need not resolve this
dispute to decide this case, the outcome of which is controlled by the language of the Indiana
disqualification statute.
The disqualification statute, which Burke asserts as the basis of his claim that Bennett
was ineligible, provides in relevant part as follows:
(c) A person is disqualified from assuming or being a candidate for an elected office if:
* * *
(6) the person is subject to:
(A) 5 U.S.C. 1502 (the Little Hatch Act); or
(B) 5 U.S.C. 7321-7326 (the Hatch Act);
and would violate either federal statute by becoming or remaining the candidate
of a political party for nomination or election to an elected office or a political
party office.
Ind. Code § 3-8-1-5(c). With exceptions not relevant here, the Little Hatch Act applies to the
political activities of state and local government employees as well as people 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 loans or grants made by the United States or a Federal Agency."
5 U.S.C. § 1501(4). Although a private, non-government organization, the Hamilton Center is
subject to the Act under federal law because it is an agency that "assumes responsibility for
planning, developing, and coordinating Head Start programs." 42 U.S.C. § 9851(a).
Pursuant to Indiana Code § 3-12-8-1, an Indiana election contest action permits a post-
election challenge to the winning candidate. The post-election remedy is available if the winning
candidate "was ineligible." Ind. Code § 3-12-8-2(1). As relevant to this action, an election
contest petition must state that the person elected "does not comply with a specific constitutional
or statutory requirement set forth in the petition that is applicable to a candidate for the office."
Id. § 3-12-8-6(a)(3)(A). A trial court, after hearing a petition "alleging that a candidate is
ineligible," must declare as elected "the qualified candidate who received the highest number of
votes and render judgment accordingly." Id. § 3-12-8-17(c) (emphasis added).
Burke's claim of Bennett's ineligibility is grounded on the Indiana disqualification statute,
specifically its subsection (5)(c)(6), which declares a person disqualified "from assuming" or
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from "being a candidate" for elected office if both of two conditions are satisfied: (1) the person
"is subject to" the Little Hatch Act, and (2) the person "would violate [the Act] by becoming or
remaining" a political party's candidate for elective office. Id. § 3-8-1-5(c)(6). The
disqualification statute thus may be employed either pre-election to challenge a person as a
candidate or post-election to prevent an election winner from assuming his or her position. The
point in time at which the statute's disqualifiers are to be assessed depends upon whether the
challenger is using the statute to prevent another person from being a candidate or from
assuming office. In this case, Burke is using the statute in an effort to stop Bennett from
assuming his elected position of Mayor.
The statutory language for both of these two conditions in subsection (5)(c)(6) focuses on
current or prospective status as the basis for disqualification due to the Hatch Act and Little
Hatch Act. In contrast, several of the statute's other provisions clearly refer to a person's past
conduct as grounds for disqualification. For example, disqualification applies for past conduct if
the person "gave or offered a bribe, threat, or reward to procure the person's election"; was
convicted of a felony or certain federal laws; or had been previously removed from the office.
Id. §§ 3-8-1-5(c)(1) to (c)(4). This construction of the Indiana disqualification statute's provision
regarding the Hatch Act and Little Hatch Act, subsection 5(c)(6), while restraining its application
in post-election contests, does not impede the pre-election application of subsection 5(c)(6) to
challenge a person's qualifications to be a candidate for elected office.
The disqualification statute provides two reasons why Burke cannot prevail in this
election contest. First, as he is seeking to use the statute not to prevent Bennett's candidacy but
to prevent his assumption of office, the statutory disqualifiers are to be assessed as of the time
the office is to be assumed. Among its supporting findings, the trial court found: "At the time of
taking mayoral office, Bennett will no longer be employed at the Hamilton Center. Thus, when
he is assuming office, he will no longer be employed by the Hamilton Center and, consequently,
will not be subject to the Little Hatch Act." Appellant's App'x at 20. Burke does not contest this
finding. Second, when as here an election victor's Little Hatch Act involvement is being asserted
to establish disqualification, the issue is not whether a successful candidate was subject to the
Act or had been in violation of it when the candidate became or remained a candidate. Rather, it
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is whether the election winner is subject to the Act and whether he would violate it by becoming
or remaining a candidate. This ground for disqualification requires proof that a person would, in
the future, violate the Act by becoming or remaining a candidate. Clearly this disqualifier is
inapplicable to establish ineligibility in a post-campaign election contest. From the time Burke
filed his election contest action to Bennett's anticipated assumption of the position of Mayor, it is
undisputed that Bennett was no longer a candidate. From the undisputed facts, it was thus
impossible for Burke to establish that Bennett "is subject to" and "would violate" the Little Hatch
Act "by becoming or remaining" a candidate, the elements for disqualification under section
(5)(c) of the disqualification statute, upon which Burke predicated his election contest.
This application of the Indiana disqualification statute is consistent with the longstanding
respect for the right of the people to free and equal elections, Ind. Const. art. 2, § 1, and the
reluctance of this Court to remove from office a person duly elected by the voters. See, e.g.,
Pabey v. Pastrick, 816 N.E.2d 1138, 1148 (Ind. 2004) ("[T]his Court has long held that statutes
providing for contesting elections should be liberally construed in order that the will of the
people in the choice of public officers may not be defeated by any merely formal or technical
objections." (internal quotation marks omitted)); Oviatt v. Behme, 238 Ind. 69, 74-75, 147
N.E.2d 897, 900 (1958) ("Properly qualified voters may not be disfranchised except by their own
willful or deliberate act to the extent that one who did not receive the highest vote cast may still
be declared elected."). Past cases have refused to remove an elected officer on claims of
ineligibility unless the electorate had notice or knowledge of the ineligibility or disqualification.
Oviatt, 238 Ind. at 74-76, 147 N.E.2d at 900-01; Hoy v. State ex rel. Buchanan, 168 Ind. 506,
517-18, 81 N.E. 509, 513-14 (1907). Cf. Fields v. Nicholson, 197 Ind. 161, 166, 150 N.E. 53, 55
(1925) ("[I]n the absence of proof that the voters willfully threw away their ballots on a
candidate they knew could not lawfully be elected, the mere fact that the one who received the
largest vote was ineligible to be elected . . . is not enough to give the candidate who received a
less number the right to the office."); State ex rel. Heston v. Ross, 170 Ind. 704, 706-07, 84 N.E.
150, 150-51 (1908) (same); State ex rel. Clawson v. Bell, 169 Ind. 61, 67-68, 82 N.E. 69, 71-73
(1907) (same).
Transfer having been granted, we affirm the trial court's judgment declaring Duke
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Bennett to be the qualified candidate who received the highest number of votes in the 2007
general election, and therefore the elected Mayor of Terre Haute, Indiana.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
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