Saturday, August 03, 2013

Interesting recall case in Ann Arbor

There's an interesting recall push down in Ann Arbor School District. I don't know anything about the issues causing the recall so I can't comment on that.

I've always been a supporter for recalls for political reasons. Politicians are our employees and if they are doing that bad of job, they should be recalled. That includes too many bad votes. Recalls are difficult, and should be difficult. If you get enough petitions for a recall, then let's have the election. They should stay a political question determined by voters and not judges.

The Washtenaw Clerk, Larry Kestenbaum (also an attorney), has some interesting statements about a recall petitions against some Ann Arbor School Board members.

From Ann

On the day that Washtenaw County Clerk Larry Kestenbaum is scheduled to determine the clarity and factuality of recall language filed against Ann Arbor school board trustees, he released a statement saying he will refuse to issue any ruling on the factuality of the recall language. 

The new law on recalls requires that the language be 'factual', but how does a County Clerk, County Treasurer, or Judge determine that? Kestenbaum's got some good points in his email which is in the link above at This is the first case here, so there's little case law that applies here.

Kestenbaum said in an email Thursday he has come to the conclusion that the new requirement of factuality in recall language is "unconstitutional on its face."
A new law passed in December 2012 makes it so the petitioner has the burden of factuality when filing recall language.
Kestenbaum said: "The submission of reasons for recall is a procedural, and not a substantive matter. And the targeted official may not impose delay by contesting whether those reasons for recall are 'good enough'." He says that judgement is up to the people and is based in the petitioner's ability to collect the prerequisite number of signatures to force a recall election.
Prior to the 2012 law, the elections commission only had to make a determination on the clarity of the petition language.
"They ruled whether it was clear enough to allow the officer in question to rebut the claims," said county Director of Elections Ed Golembiewski earlier this week.
The board rejected 3-0 the recalls due to lack of clarity, so Kestenbaum's claim can't be tested.

The Washtenaw County Elections Commission Thursday rejected recall petition language that was filed against six Ann Arbor school board members.
The commission voted 3-0 to reject the language on the petition on the basis of clarity. The commission did not take up the issue of whether the language is factual.
The ruling stymied for now the recall effort of the Ann Arbor Public Schools Parents for Change. The parents, who are frustrated by what they say is general dysfunction on the school board, will have 10 days to appeal the decision in Circuit Court. The group also could submit a new petition with revised language.

The rejection was proper. How are these reasons clear? It's all opinions. It's not like it said "John Smith voted on 1-1-13 to raise income taxes 30%"

  • Failure to demonstrate thoughtful consideration of constituent priorities.
  • Failure to demonstrate transparency in decision making.
  • Failure to demonstrate cohesive and singular direction as evidenced by consistent split voting.
  • Failure to provide sufficient backing and support for district superintendent position as evidenced by high turnover rate averaging 2.25 years per term.

Those are vague and don't say anything outside of one person's opinion which can't be measured. Since it didn't pass clarity, there wasn't a need to make a decision on its factuality so that won't be sent to court, at least in this case.

The lesson here for our legislators and those who sign them is this. Consider how these laws will be executed, if they are able to be executed, and who will be the ones executing them in a worst case scenario (Eric Holder or Janet Reno).

Do these board members deserve recall? That's for the voters there to decide if there's clear language and enough signatures. 

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