As stated before, I'm not sure how I feel about recalling Congressman Walberg. However, it will be interesting to see how this turns out, and to watch Walberg's legal actions.

After Congressman Walberg's lawyer stated constitutional objections, Judge Margaret Noe ordered both James Carr (who brought the petition) and Eric Doster (Walberg's lawyer) to submit written briefs and return for oral arguments for August 6th. In the comments, Carr has posted the letter he sent to the Lenawee County clerk.

Dear Ms. Bluntschly,

Following the instructions of the chairman of the board of election commissioners of Lenawee County, as orally presented to me at the hearing held in the probate courtroom, the following legal citations are presented through you to the other members of the board of election commissioners:

The following legal precedents are offered as justification for the presentation of the recall petition, authored by me, for the sole purpose of clarity of language. The right of the petitioner to present such a recall petition is embedded in the following document:

Amendment X, Constitution of the United States of America: "The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Following this direction from the constitution of our country, the State of Michigan legislated the following, which clearly states that a member of congress from a district in Michigan is subject to recall:

Michigan Election Law, Act 116 of 1954; Section 168.149:

"Persons holding the office of representative in congress are subject to recall by the qualified and registered electors of their congressional districts as provided in chapter 36 of this act."

Further in this Michigan election law, the following direction is given to the board of county election commissioners and appears to me to be the only guidance for this body:

Michigan Election Law, Act 116 of 1954; Section 168.952, sub-paragraph (3):

"(3) The board of county election commissioners, not less than 10 days or more than 20 days after submission of it of a petition for the recall of an officer, shall meet and shall determine whether each reason for the recall stated in the petition is of sufficient clarity to enable the officer whose recall is sought and the electors to identify the course of conduct that is the basis for the recall. (Underlined)= Failure of the board of county election commissioners to comply with this subsection shall constitute a determination 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 that is the basis for the recall. (end underline) (Emphasis added)

This petitioner has complied with the above stated laws and direction to the best of his ability and, to his knowledge, the absence of any direction to the contrary.

Please note, that the underlined portion of paragraph (3) of Section 952 , of the Michigan Election Act 116 of 1954 stands in direct opposition to the final decision of the board at their meeting yesterday. By postponing the completion of that hearing and then designating another date, 15 days hence, the time limitation given to the board to consider the petition is exceeded. This petition was submitted by me to the Lenawee County Clerk on July 8, 2007; the response from the county clerk to me is dated July 10, 2007; the hearing held yesterday in the probate courtroom in Lenawee was on July 22, which was 12 days following receipt of the recall petition language; date set by the board of August 2, which adds an additional 10 days, which exceeds the legislated period of time allotted for the board's decision on the clarity of the language.

Further, the underlined portion above states that . . . "Failure of the board to comply shall constitute a determination that each reason for the recall stated in the petition is of sufficient clarity . . .". The guidance of the board of election commissioners of Lenawee County is needed at this time.

May I please receive an acknowledgment of the receipt of this letter and the time, date, and location of the next scheduled meeting, providing one is to be held in view of the language cited in the preceding paragraph.

Sincerely yours, /s/ James R. Carr
James R. Carr, 209 N. Bowen, Jackson MI 49202, Tel: 517-8-784-8226

The short version: James Carr is following the laws of Michigan, as sanctioned by the state constitution, and within the Tenth Amendment to the U.S. Constitution. By choosing to delay and failing to rule on clarity within 15 days of the initial submission, the board of election commissioners may have effectively stated that the language was approved.

If there are any lawyers out there reading, I'd love to get a clarification on that point.

Either way, the underlying constitutional issue remains the same. James Carr is following Michigan law and cites the Tenth Amendment. Walberg's lawyer claims that those laws themselves are unconstitutional, citing a similar but unrelated Supreme Court ruling.

Now, it's important to keep in mind, if the recall petition were to go forward, there would still be the task of getting around 50,000 valid signatures, and then the even larger task of winning a majority vote in favor of recalling the congressman. It would take a monumental effort on the part of Carr to be successful.

And yet Tim Walberg seems to be frightened enough to send out a lawyer to fight it at this level.

In an e-mail to me, Carr commented:

I think it strange, first that a congressman would hire a very expensive lawfirm to challenge a legally sanction activity in the Michigan Constitution; second, the 24 page informational packet was thrust at the Chairman after the hearing had begun and a copy given to me. After reading the first few pages, it was evident that this lawyer either was unfamiliar with Michigan law or was just trying to obfuscate the issue.

It'll be interesting to see where this goes.

Labels: Constitution, James Carr, Recall, Tim Walberg