The election commissioners are Donald E. Shelton, chief judge of the Washtenaw County Trial Court; Larry Kestenbaum, county clerk/register of deeds; and Catherine McClary, county treasurer. They cited a lack of sufficient clarity in the language as the reason for their decision.

On July 17, 2013 Jody Huhn – a parent with children in the AAPS system – submitted language to recall six trustees: Simone Lightfoot, Susan Baskett, Irene Patalan, Glenn Nelson, Andy Thomas, and Christine Stead. Patalan and Nelson did not attend the hearing. Three of the four trustees who did attend – Baskett, Thomas and Stead – addressed the commissioners, arguing that the recall language was not clear and not factual.

In documents submitted to the Washtenaw County director of elections, Huhn cited four reasons for this recall [.pdf of recall petition language]:

(1) failure to demonstrate thoughtful consideration of constituent priorities; (2) failure to demonstrate transparency in decision-making; (3) failure to demonstrate cohesive and singular direction as evidenced by consistent split voting; (4) failure to provide sufficient backing and support for district superintendent position as evidenced by high turnover rate averaging 2.25 years per term.

Board president Deb Mexicotte was not included because state election law prohibits the filing of a recall petition against elected officials who are in the first year of their term, if that term is longer than two years. Nor can such officials be recalled in the final year of their term, for terms longer than two years. Mexicotte was re-elected to a four-year term in November 2012, for the only AAPS trustee position on that ballot – so she is still serving the first year of her current term. This particular recall constraint was part of broader amendments in state election law Act 417 of 2012. [.pdf of Act 417 of 2012]

Related to item (4) in the proposed ballot language, the most recent AAPS superintendent, Patricia Green, turned in her resignation in early April after a little less than two years on the job. Her resignation took effect in mid-July.

Huhn had supported Ben Edmondson for the superintendent’s position. Edmonson, principal at district’s Roberto Clemente Student Development Center, had been one of six semi-finalists selected by the AAPS board in its current superintendent search, but was not picked as one of the two finalists. Those two finalists – Brian Osborne and Jeanice Kerr Swift – were not internal candidates. Last month the board offered the job to Osborne, but he ultimately rejected the offer. Earlier this week, the board made an offer to Swift, who has agreed to enter into contract negotiations.

Huhn attended the recall language hearing, but declined to address the board.

Initial steps of a recall require that ballot language be deemed clear and factual by the board of election commissioners in the jurisdiction of the elected officials who are the target of the recall. Clarity is defined in terms of the ability of the officer whose recall is being sought and for electors to identify the course of conduct that is the basis for the recall.

The requirement that the language be factual was added to the legislation as an amendment to Act 417 of 2012. Early in the morning of Aug. 1, Kestenbaum sent an email to the other two election commissioners – Shelton and McClary – stating that he does not believe the factual-standard requirement is constitutional. [.pdf of Kestenbaum's Aug. 1, 2013 email]

In his email, Kestenbaum argued that the factual-standard requirement is unconstitutional by citing the following passage of the Michigan constitution, and calling out the final sentence for emphasis:

Laws shall be enacted to provide for the recall of all elective officers except judges of courts of record upon petition of electors equal in number to 25 percent of the number of persons voting in the last preceding election for the office of governor in the electoral district of the officer sought to be recalled. The sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question.

Kestenbaum concluded that: “The sufficiency of reasons for recall is a political question. It is specifically not a judicial question. If the election commission and the courts can determine the truth or falsity of reasons for recall, then the power to judge these questions has been removed from the people.”

In his email, Kestenbaum stated that during the review of the proposed ballot language for the AAPS trustees, he would apply the standard of clarity. That’s the other part of the standard, which was also part of the law before Act 417 of 2012 was passed.

At the Aug. 1 hearing, commissioners decided to address the issue of clarity first, and if the language were deemed to be clear, they would then move on to discuss the issue of factuality. After brief deliberations, the three commissioners voted unanimously that the recall language in all six petitions – which contained identical wording – lacked sufficient clarity.

McClary made a motion to address the issue of factuality, stating that the recall language did not appear to be factual. Her motion died for lack of a second. Shelton and Kestenbaum indicated that there was no need to deliberate on that issue, since the question of clarity had already been determined and the law requires that the language must be both clear and factual.

This brief was filed from the boardroom of the county administration building. A more detailed report will follow: [link]

Kestenbaum, who is one member of the three-member board of election commissioners for Washtenaw County, made the announcement in an email sent early on Aug. 1, 2013 to the other two members of the board: Donald E. Shelton, chief judge of the Washtenaw County Trial Court; and Catherine McClary, county treasurer. [.pdf of Kestenbaum's Aug. 1, 2013 email]

Kestenbaum’s email comes in the context of a scheduled hearing today, Aug. 1, to review the proposed ballot language for a proposed recall for six Ann Arbor Public Schools trustees. That hearing is scheduled for 1 p.m. today at the county boardroom, 220 N. Main Street in Ann Arbor. If the board of election commissioners deems the language to fall short of the legal standard, then petitions asking for a recall can’t be circulated.

In his email, Kestenbaum argues that the factual-standard requirement is unconstitutional by citing the following passage of the Michigan constitution, and calling out the final sentence for emphasis:

Laws shall be enacted to provide for the recall of all elective officers except judges of courts of record upon petition of electors equal in number to 25 percent of the number of persons voting in the last preceding election for the office of governor in the electoral district of the officer sought to be recalled. The sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question.

Kestenbaum concludes that: “The sufficiency of reasons for recall is a political question. It is specifically not a judicial question. If the election commission and the courts can determine the truth or falsity of reasons for recall, then the power to judge these questions has been removed from the people.”

In his email, Kestenbaum states that during the review of the proposed ballot language for the AAPS trustees today, he will apply the standard of clarity. That’s the other part of the standard, which was also part of the law before Act 417 of 2012 was passed.

About the new standard, however, Kestenbaum states: “I respectfully decline to review any recall language for ‘factuality.’”

Kestenbaum’s email also states that he would oppose any attempt during the board of election commissioners meeting to weigh the question of whether the AAPS trustees recall language is “factual.”

In documents submitted to the Washtenaw County director of elections, Huhn cites  four reasons for this recall [.pdf of recall petition language]:

(1) failure to demonstrate thoughtful consideration of constituent priorities; (2) failure to demonstrate transparency in decision-making; (3) failure to demonstrate cohesive and singular direction as evidenced by consistent split voting; (4) failure to provide sufficient backing and support for district superintendent position as evidenced by high turnover rate averaging 2.25 years per term.

Updated after initial publication: State election law prohibits the filing of a recall petition against elected officials who are in the first year of their term, if that term is longer than two years. Nor can such officials be recalled in the final year of their term, for terms longer than two years. Deb Mexicotte was re-elected to a four-year term in November 2012, for the only AAPS trustee position on that ballot – so she is still serving the first year of her current term. This particular recall constraint was part of broader amendments in state election law P.A. 417 of 2012, according to Ed Golembiewski, Washtenaw County’s director of elections. [.pdf of P.A. 417 of 2012]

Initial steps of a recall require that ballot language be deemed clear and factual by the board of election commissioners in the jurisdiction of the elected officials who are the target of the recall. Clarity is defined in terms of the ability of the officer whose recall is being sought and for electors to identify the course of conduct that is the basis for the recall. The Washtenaw County board of election commissioners are Donald E. Shelton, chief judge of the Washtenaw County Trial Court; Larry Kestenbaum, county clerk/register of deeds; and Catherine McClary, county treasurer.

The most recent AAPS superintendent, Patricia Green, turned in her resignation in early April after a little less than two years on the job. Her resignation took effect in mid-July.

Huhn is an AAPS parent who had supported Ben Edmondson for the superintendent’s position. Edmonson, principal at district’s Roberto Clemente Student Development Center, had been one of six semi-finalists selected by the AAPS board in its current superintendent search, but was not picked as one of the two finalists. Those two finalists – Brian Osborne and Jeanice Kerr Swift – are not internal candidates. The AAPS board is expected to make its final selection at a meeting on Friday, July 19 at 5:30 p.m. at the Balas administration building, 2555 S. State St. The meeting is open to the public.

Huhn submitted the recall documents on July 17. The Washtenaw County board of election commissioners will hold a clarity/factual review hearing on Thursday, Aug. 1, 2013 at 1 p.m. in the boardroom of the Washtenaw County administration building at 220 N. Main St., Ann Arbor. Without approval by the board, the recalls can’t move forward unless the decisions are appealed.

The board’s decision was unanimous regarding the Horiszny recall language. But the decision to reject the language for Warren’s recall was made on a 2-1 vote. Without approval by the board, the recalls can’t move forward unless the decisions are appealed.

Initial steps of a recall require that ballot language be deemed clear by the board of election commissioners in the jurisdiction of the elected official who is the target of the recall. The Washtenaw County board of election commissioners consists of Donald E. Shelton (chair), chief judge of the Washtenaw County Trial Court; Larry Kestenbaum (secretary), county clerk; and Catherine McClary (member), county treasurer.

The board found that the proposed ballot language submitted on Aug. 1 by Ypsilanti resident David H. Raaflaub was not sufficiently clear. The proposed language reads: “Michigan House Bill 4362 eliminates the job-killing Michigan Business Tax; however, on May 12, 2011, State Sen. Rebekah Warren voted ‘No’ on final passage of Michigan House Bill 4362.” Kestenbaum’s was the dissenting vote.

Raaflaub, who did not attend Monday’s clarity hearing, most recently was a Republican candidate in 2010 for Washtenaw County commissioner in District 6. Warren is married to Conan Smith, a Democrat who represents District 10 on the county board of commissioners and who is chair of the board.

Warren spoke briefly to the board at the hearing, arguing that among other things, the MBT hasn’t yet been repealed.

This is the second recent attempt to recall Warren, an Ann Arbor Democrat who represents District 18. On July 7, 2011, Steven E. Wallis of Ypsilanti Township submitted ballot language that differed in only one way from this week’s submission – it referred to House Bill 4361 in both instances.

At a clarity hearing held on July 18, 2011, the board of election commissioners found that the proposed ballot language submitted by Wallis was not sufficiently clear. The vote rejecting the petition by Wallis language was 2-1, with Kestenbaum dissenting. Shelton and McClary noted that HB 4361 did not, in fact, eliminate the Michigan Business Tax – nor did the bill reference that tax. The MBT was addressed in a companion piece of legislation – House Bill 4362.

At Monday’s hearing, McClary and Shelton expressed the same concerns that caused them to vote against the previous recall. McClary objected to the phrase “job-killing,” and Shelton said the House bill does not eliminate the MBT. Kestenbaum again dissented, saying his vote was consistent with his previous stance, given that only the number of the bill had changed in the ballot language. In his opinion, the language was clear enough to move forward.

Also at the Aug. 15 clarity hearing, the board found that proposed ballot language in a petition asking for the recall of WCC trustee Pamela Horiszny did not meet the requirement that the petition address actions occurring only during the elected official’s term. The ballot language submitted on July 26 relates to cancellation of a nursing transfer program between WCC and the University of Michigan, and includes reference to an incident occurring on Oct. 21, 2010. Horiszny’s current term began on Jan. 1, 2011. The recall petition was filed by William Campbell of Ann Arbor, who ran unsuccessfully against Horiszny for WCC trustee in 2010. Campbell attended Monday’s meeting but did not address the board.

Raaflaub most recently was a Republican candidate in 2010 for Washtenaw County commissioner in District 6. Warren is married to Conan Smith, a Democrat who represents District 10 on the county board of commissioners and who is chair of the board.

Initial steps of a recall require that ballot language be deemed clear by the board of election commissioners in the jurisdiction of the elected official who is the target of the recall. The Washtenaw County board of election commissioners consists of Donald E. Shelton (chair), chief judge of the Washtenaw County Trial Court; Larry Kestenbaum (secretary), county clerk; and Catherine McClary (member), county treasurer.

Warren was the subject of another recall attempt earlier this summer. On July 7, 2011, Steven E. Wallis of Ypsilanti Township submitted ballot language that differed in only one way from this week’s submission – it referred to House Bill 4361 in both instances. At a clarity hearing held on July 18, 2011, the Washtenaw County board of election commissioners found that the proposed ballot language submitted by Wallis was not sufficiently clear. The vote rejecting the petition language was 2-1, with Kestenbaum dissenting. Shelton and McClary noted that HB 4361 does not, in fact, eliminate the Michigan Business Tax – nor does the bill reference that tax. The MBT was addressed in a companion piece of legislation – House Bill 4362.

A clarity hearing for the new recall attempt against Warren is set for 2:30 p.m. on Monday, Aug. 15 in the lower level conference room of the county administration building at 200 N. Main St. On the agenda for the same meeting will be ballot language submitted on July 26 to recall Washtenaw Community College trustee Pamela Horiszny, who chairs the WCC board of trustees. That recall relates to cancellation of a nursing transfer program between WCC and the University of Michigan. The recall petition was filed by William Campbell of Ann Arbor, who ran unsuccessfully against Horiszny for WCC trustee in 2010.