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.”

Washtenaw County board of election commissioners, left to right: Larry Kestenbaum, Catherine McClary, Donald Shelton. (Photos by the writer.)

Washtenaw County’s election board held the hearing because the petition must be filed in the county where the subject of the recall lives – Snyder is an Ann Arbor area resident.

Around 20 people attended the hearing, many of whom wore yellow buttons with language indicating support for the recall. Four people addressed the board during the public participation part of the agenda, including Snyder’s legal counsel, John Pirich, of the law firm Honigman Miller Schwartz and Cohn. Snyder – who is giving the commencement speech at the April 30 University of Michigan graduation ceremonies – did not attend Friday’s hearing.

The board of election commissioners consists of (chair) Donald E. Shelton, chief judge of the Washtenaw County Trial Court; (secretary) Larry Kestenbaum, county clerk; and (member) Catherine McClary, county treasurer. Kestenbaum and McClary were elected clerk and treasurer as Democrats. Shelton was elected judge on a non-partisan ballot, but in the past has run for office as a Democrat.

The vote on the clarity of the language was 2-1. McClary’s was the dissenting vote.

The language that the board found to be sufficiently clear was as follows: “Richard D. Snyder has requested from the legislature, approved and signed various laws that take authority and funds from local governments and school districts and vest them with the state. He has obtained for himself, through his appointed Emergency Financial Managers, the power to invalidate legal and binding contracts entered into by properly elected local authorities. He has sought tax increases upon retirees and lower income families, but instead of addressing the deficit, he has sought large new tax cuts for corporations and businesses.” [.pdf of proposed recall ballot language]

Under Michigan’s state election law, the finding at a clarity hearing can be appealed to the Circuit Court within 10 days of the finding by the petitioner or the officer. As of late Friday, April 29, Snyder had not made a decision whether to appeal.

Snyder’s office issued this statement: “The Governor remains fully committed to making the tough fiscal and policy decisions that have been put off for far too long. He knew full well that it wasn’t going to be easy. His budget and tax plan was a comprehensive approach to hit the ‘reset’ button and tackle the state’s structural deficit once and for all, grow Michigan’s economy for more and better jobs, ensure core and safety net services, and build a strong foundation for the future.”

After public participation, the deliberations by the board of election commissioners on the clarity of the language lasted about 10 minutes, with the entire session lasting around 20 minutes.

Background

The petition language was submitted on April 18, 2011 by Gerald D. Rozner from the city of Monroe. Rozner attended the clarity hearing. The recall effort is being organized by a group called Michigan Citizens United. By state election law, the board had a window between 10 and 20 days after the petition during which to complete the clarity hearing. If no hearing had been held, the default finding is that the language is sufficiently clear.

If there is no appeal or if the petition language survives any appeal, the recall effort would need to collect signatures equal to 25% of the number of votes cast for the office of governor in the general election – about 800,000 signatures would be required. By law, the petition itself can’t be submitted until six months after the recall subject takes office – that means the recall petition could be filed no earlier than July 1, 2011.

Hearing Introduction

About 10 minutes after 9 a.m. when the hearing was scheduled to begin, Catherine McClary told the audience that the election board would wait until its chair, Judge Donald Shelton, arrived – he’d indicated he was on his way.

When Shelton arrived a few minutes later, he described the purpose of the hearing – for the board to determine if the reasons for the recall stated in the petition are of sufficient clarity to enable both the officer [Snyder] whose recall is being sought and the voters to identify the course of conduct that is the basis of the recall.

Shelton stressed that the board was not there to “talk about, rule on, or otherwise discuss the truthfulness or falsity” of the statements in the proposed petition. He reiterated that the purpose of the hearing was only to determine if the statements are clear enough for the officer to understand them and for voters to vote on them.

Shelton allowed that several people who wished to speak might well have strong feelings about whether the statements are true or not true, but that’s not the question to be decided, he said.

Public Participation

Shelton first invited the proponents of the petition language to make a statement, if they wished to do so. Three members of Michigan Citizens United identified themselves as present. After a brief consultation among themselves, Tim Kramer approached the microphone.

Public Participation: Petitioner

Shelton asked Kramer if he’d like to speak to the language in the petition. Kramer told Shelton that he felt the language was clear. Marion Townsend asked if they were required to make a statement, or if they could let the words in the proposed petition stand for themselves.

Shelton told them that they could absolutely do that, but he was making sure they were provided with an opportunity to make a statement. Townsend said they were willing to “let it ride” pending further discussion.

Public Participation: Legal Counsel for Snyder

When Shelton invited further commentary from the public, the legal counsel for Snyder – John Pirich, of the law firm Honigman Miller Schwartz and Cohn – then addressed the board. He argued that the language was not clear. He began by citing the relevant section of the Michigan State Election Law, which requires that each reason given for the recall be of sufficient clarity to enable the officer and the electorate to identify the course of conduct that is the basis for the recall. From the Michigan State Election Law (Act 166 of 1954):

168.952 Recall petitions; requirements; submission to board of county election commissioners; determination; notice; meeting; presentation of arguments; appeal; validity of petition. Sec. 952. …
(3) … that each reason for the recall stated in the petition is of sufficient clarity to enable the officer whose recall is being sought and the electors to identify the course of conduct that is the basis for the recall.

Pirich then highlighted three parts of the recall petition language that he argued did not meet the statutory standard of clarity. He focused first on the introductory clause:

Richard D. Snyder has requested from the legislature, approved and signed various laws that take authority and funds from local governments and school districts and vest them with the state.

“Quite honestly,” Pirich said, “I don’t know what they’re referring to.” He noted that there is no specific legislation referenced by the petition. Further, he said, he knew of no legislation that had been enacted by the legislature that had been signed into law. He allowed that there may eventually be some enactment, which at some point might be complained about – but there has not been an enactment of any of the laws that are referenced in the petition.

Pirich then argued in a way that county clerk Larry Kestenbaum would later note, during his deliberations, inaccurately characterized the language of the petition. Pirich contended that the petition language alleged that the state had somehow “improperly” taken funds from local units of government or vested funds improperly or illegally, which Pirich said was not reflective of reality. The state has not taken anything away, Pirich said – it is an appropriations budget.

Pirich then moved to the petition language that refers to the appointed emergency financial managers:

He has obtained for himself, through his appointed Emergency Financial Managers, the power to invalidate legal and binding contracts entered into by properly elected local authorities.

Pirich contended that there are no emergency financial managers who have been appointed. He allowed that former Gov. Jennifer Granholm had appointed emergency financial managers in the past, but there have been none appointed by Snyder. It was therefore not just factually incorrect, said Pirich, but a non sequitur. He continued by saying that emergency financial managers are appointed in areas that are under some kind of financial distress, but there is no reference to that in the petition language.

Pirich then focused on the third sentence of the recall language:

He has sought tax increases upon retirees and lower income families, but instead of addressing the deficit, he has sought large new tax cuts for corporations and businesses.

“It’s just not factually or legally accurate,” Pirich told the board. Even if you look at the proposed legislation, which has not yet been enacted into law, it specifically revolves around modifications to tax credits or tax incentives – but there are no tax increases, he said.

Legal counsel for Gov. Snyder John Pirich, left, and Washtenaw County clerk Larry Kestenbaum, right, a member of the county board of election commissioners.

As for the tax cuts for corporations, there is no reference to any such action, Pirich argued. And whatever legislation that might eventually be enacted would include both increases and decreases, but that’s not what is referenced in the petition, he said.

Pirich concluded by pointing to the constitutional requirement for a balanced budget for each fiscal year. How that budget is balanced each year depends on that process as it unfolds, but that process has not yet happened, Pirich said. So at this stage, it’s premature to base a petition on those events, because they have not yet occurred. Pirich requested that the petition be denied based on the failure to meet the requirement of clarity.

In wrapping up his comments, Pirich offered to discuss the case law on the issue, in particular the Donigan v. Oakland County Election Commission case. In that case, Pirich said, the Michigan Court of Appeals specifically looked at references in a recall petition that related to bills that had been introduced into the legislature and specifically referenced in the recall petition – but that is not what the petition to recall Snyder has in it, he said.

Background: Donigan Case Referenced by Pirich

The 2008 Donigan case to which Pirich referred involved Marie Donigan, the state representative from the 26th House District. The stated reason for recall was: “Voted yes on 2007 House Bill 5194 to increase the income tax to 4.35 percent, and voted yes on 2007 House Bill 5198 to impose new 6 percent taxes on certain services.”

The Oakland County board of election commissioners found on a split vote that the language was sufficiently clear. Donigan appealed the ruling to the circuit court and won. But the court of appeals reversed that decision and found that the language was in fact sufficiently clear.

The standard applied by the court of appeals in that case was:

The standard of review for clarity of recall petitions has been described as both “lenient,” and “very lenient.” “Thus, recall review by the courts should be very, very limited.” A meticulous and detailed statement of the charges against an officeholder is not required. It is sufficient if an officeholder is apprised of the course of conduct in office that is the basis of the recall drive, so that a defense can be mounted regarding that conduct. “Where the clarity of the reasons stated in the petition is a close question, doubt should be resolved in favor of the individual formulating the petition.”

Public Participation: Rebuttal

Kramer asked for an opportunity to rebut the arguments made by Pirich. Kramer simply noted that what is at issue is not what is factual or legal, as Pirich had argued, but the clarity of the language.

Tim Kramer, with the recall petitioners.

Another member of the public, Charles Williams, echoed the sentiments of Kramer – that Pirich had spoken to the issue of facts (what is true and not true) and had not spoken to the clarity of the language.

Marion Townsend told the board that in accordance with a document describing the recall process, provided by the state of Michigan’s website, it clearly states that only the clarity of the language is subject to the board’s review. So she asked that arguments made by Pirich not be taken into account as relevant to the clarity of the language.

Townsend told the board that her understanding of the law was that the petition could say something like, “We don’t like Mr. Snyder, because he parts his hair on the left.” As long as the language is clear, she said, the petition should go forward.

Election Board Deliberations

Deliberations were straightforward, with each commissioner taking a turn. Kestenbaum went first. McClary followed next, and made a motion to find that the language was not sufficiently clear. The motion died for lack of a second. Shelton weighed in last.

Deliberations: Kestenbaum

Kestenbaum led off the deliberations by the board by saying that he’d been looking forward to what was going to be said at the hearing. He reiterated that the question of truth or falsity was not before the board. He noted that Pirich had referred to the petition claiming that Snyder had done something “improperly.”

But Kestenbaum observed that the petition does not contain the word, “improperly.” He said the board typically sees recall language about actions that are taken that are perfectly valid legally – money was expended, or ordinances were passed, for example. The fact that a recall petition is premised on those actions, Kestenbaum said, does not mean that those actions are alleged to be improper or illegal.

It’s a central premise of the structure of government in Michigan, Kestenbaum continued, that local governments are creatures of the state. So in his opinion, Kestenbaum said, there’s no constitutional issue. He said the reasons cited for recall in the petition are valid. His only issue with the clarity was with the word “vest,” which he was not sure would be understood by everyone, but other than that he was content that the language was clear.

Shelton responded to Kestenbaum by quipping that anyone who has a retirement plan probably understands what “vest” means.

Deliberations: McClary

McClary allowed that she was the only person who was not an attorney so she wouldn’t get into the legal aspects of it. She did note, however, that she’d unfortunately had to attend a lot of clarity hearings on recall petitions. She said she didn’t care whether the statements were true or untrue.

Washtenaw County clerk Larry Kestenbaum and Washtenaw County treasurer Catherine McClary, both of whom are members of the three-member Washtenaw County board of election commissioners.

Responding to Townsend’s observation that the petition could very well say, “We don’t like Mr. Snyder, because he parts his hair on the left,” she said that would be clear to her.

But she noted that there are misplaced commas in the language. She also said she’d circled the word “vest.” She said that in the phrase, “he obtained for himself,” it’s not clear whether that means for himself personally or for himself as the governor.

As for “he requested from the legislature, approved and signed,” McClary said she doesn’t know what he approved and signed. As for, “he sought tax increases upon retirees and lower income families,” she said she personally knew that to be true. But the way the sentence continues, with “instead of addressing the deficit,” it just doesn’t hang together, she said.

So McClary moved that the recall language was not of sufficient clarity to identify the course of conduct in a recall election. The motion died for lack of a second.

Deliberations: Shelton

Shelton said his own observations stemmed from the lawyer in him, but quipped that some people say a judge has not been a lawyer in a long time.

Shelton said he tends to look at the “operative words, the verbs” that are used to describe the conduct. In this case, it states that Snyder “requested, approved and signed.” Shelton said he thought those words speak for themselves.

The next sentence states that Snyder “has obtained” the power to invalidate contracts. Whether that is true or not, Shelton said, he thought people would understand what that means. Finally, Shelton observed, the language states that Snyder “has sought” tax cuts – those are the operative words.

Shelton said it was possible to have a lot of discussion about whether Snyder has in fact requested, or has in fact approved or signed the described laws. But Shelton said he believed those are questions of fact. The role of the board is to determine whether people walking into the voting booth will understand what the allegations are.

If the recall language appears on the ballot, a response from Snyder will also appear on the ballot, Shelton explained. The officer has the opportunity to submit a response. The purpose of that, Shelton explained, is to provide the officer with a chance to say, “That’s not true, I didn’t do that, I did do that, but here’s why.”

Judge Donald Shelton reviews documents just before calling the hearing to order, as county treasurer Catherine McClary looks on.

Shelton said his view is that some deference must be given to the voters, and unless the language is so unclear that it’s confusing, then the electorate has to be trusted to read the petition, decide if they want to sign it, and if it achieves enough signatures, then read it in the voting booth.

Shelton clarified that any decision to approve the clarity of the language is not a decision about the format of the petition papers. What the petitioners had submitted would not be acceptable, Shelton said, and he asked deputy county clerk Matt Yankee to explain. Yankee said there was no such thing as a recall petition for an entire county along the lines that they’d formatted their petition sheets.

Yankee was alluding to the following section of the Michigan State Election Law:

168.958 Recall petition sheet; signature of qualified and registered electors; location for signing; signature of person not qualified and registered elector. Sec. 958. A petition sheet shall contain only the signatures of qualified and registered electors of the city or township listed in its heading. For recall of a village officer the petition shall be signed by qualified and registered electors of the village.

Representatives from Michigan Citizens United said they were aware of the issue and would rectify it before going to the printer.

Another technical question from MCU concerned the possible use of 2D barcodes on the petitions – they’d like to use them for tracking purposes. Shelton deferred to Yankee, who directed them to the State Bureau of Elections to get information on that. They responded by saying that even that limited direction was already more information than what they’d previously been given.

Kestenbaum moved that the language in the petition was sufficiently clear. Shelton seconded the motion.

Outcome: The Washtenaw County board of election commissioners voted 2-1 to find that the recall petition language meets the statutory clarity standard. McClary cast the dissenting vote.