Tuesday, August 28, 2007
The Recall Is Over
I just got an e-mail from Jim Carr, leader of the effort to recall Congressman Tim Walberg
The court hearing this morning in Lenawee County surprised me but then I am more of an optimist than a realist. I am attaching a copying of the remarks that I made to the judge during the hearing, that appeared to fall on deaf ears.
Walberg's attorney presented his continuing campaign citing constitutional issues which the judge accepted with little or no comment. Rendering his decision, his eyes were on Walberg's attorney and he smiled occasionally as he ruled for the relief that they had requested. He did mention my arguments in a sentence or two, but as he read from his own notes, it was evident to me that he had his decision already made before I made my presentation.
The recall is over! I am contacting everyone that has petitions or discs with petition copies on them and asking them to dispose of them and cease any activity regarding this effort. I believe it is unrealistic and unfair to ask people to circulate petitions which, while legally sanctioned by the state of Michigan, will not be counted when sufficient signatures are turned in to the Secretary of State.
The recall ended before it ever got a chance to begin. Here are Jim Carr's remarks from this morning:
LENAWEE COUNTY CIRCUIT COURT HEARING
Harvey A. Koselka, Judge
1. My name is James R. Carr. I am a defendant in this procedure, since I authored the recall petition which began this action.
2. I am representing myself.
3. I wish to address the court on the requested issuance of a writ of mandamus, sought by the plaintiff in order to render the recall of Congressman Timothy Walberg moot.
4. The recall petition was mailed by thisdefendant to the County Clerk of Lenawee County, State of Michigan, in accordance with the provisions of Michigan Election Law, Act 116 of 1954, Section 168.149, Representative in Congress recall.
5. Michigan Election Law, Act 116 of 1954, Section 952 establishes a schedule of timeliness for the petitioner. The time limits are specific and cited here:
Petition mailed to Lenawee County Clerk: July 8, 2007
Congressman Walberg notified by letter: July 10, 2007
Board of Election Commissioners clarity meeting: July 23, 2007. This meeting had the sole purpose of approving or rejecting the language of the recall petition.
The board and this defendant were counfounded when presented with a sheaf of documents, challenging the board’s right to hear the petition and presenting contentions that the action could not be heard. The clarity issue was touched upon but only to cite the various Michigan constitution sections pertinent to the action.
The provisions of Michigan election law cited by plaintiff in his compendium of arguments presented in documentation on July 23, 2007 indicated that this defendant has complied with such provisions. The thrust of plaintiff’s argument was not the clarity issue but rather the improper introduction of the constitutionality of the recall itself.
A hearing, following the laws of the State of Michigan now, according to the plaintiff, became a constitutional issue, rather than a clarity hearing. It was evident by the demeanor of the Board of Election Commissioners that they too were bewildered and quickly adjourned the hearing for two weeks while they studied the documentation presented by the legal representative of Congressman Walberg.
I would like to direct to the court’s attention to the provisions of Section 952, which permits a period of not less than 10 days nor more than 20 days after submission of the recall petition to determine the clarity of each reason for the recall.
Since a decision on the clarity was postponed for 14 days, the time limitation of 20 days was not followed. The penalty for the lack of a decision of clarity reads as follows: “. . . Sec. 952 (3): .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 basis for the recall.”
Subsequently, on August 6, 2007, the clarity hearing was reconvened and the clarity of the language of the petition was approved.
The date on the filing of this complaint is August 15, which represents 10 days after the reconvened hearing of the Board of Election Commissioners. Notice must be taken of the tardiness involved in this entire procedure.
Michigan State Law was the guidance sought and followed by the recall petitioner. When the time limitations are applied, as quoted above, providing one uses the 20 day limitation, July 30, 2007, would have been the final day of the time limit in Section 952. Therefore, this complaint should have been filed on or before August 10, 2007, to this court, presenting arguments against clarity. This was not done and, it is believed by this petitioner, that plaintiff relinquished his rights to appeal the matter to this court.
Additionally, if one were to use the July 23, 2007 hearing, which was the initial meeting of the Board of Election Commissioners, when the decision should be been announced, then plaintiff had until August 2, 2007, to appeal the clarity matter to circuit court.
Regardless of which date is used for computing the time element, this hearing does not comply with the time limits cited in the applicable sections of the Michigan Election Law.
One other element of this Michigan Law, Sec. 952, (7) reads: QUOTE A petition that is determined to be of sufficient clarity under the subsection (1) or, if the determination under subsection (1) is appealed pursuant to subsection (6), a petition that is determined by the circuit court to be of sufficient clarity is valid for 180 days following the last determination of sufficient clarity under this section. UNQUOTE The invoking of this provision of the law depends upon the final determination of this complaint.
I would like to address the issue of appropriate jurisdiction. Plaintiff argues that the 10th Amendment to the United States Constitution does not apply and provided the Board with an exceptional amount of legal research, none of which applies directly to the clarity issue but rather to the constitutionality of such a recall petition.
Plaintiff further contends that the Michigan State law is unconstitutional and therefore a writ of mandamus should be issued to set aside the decision of the Lenawee County board of election commissioners.
This defendant contends that this is not the proper jurisdiction for this action. To use the decision of clarity as a vehicle to present such contentions, for, if this court were to rule on the constitutional issue, it would be “making law” rather than deciding what the cited law directs.
Additionally, it is the opinion of this defendant that such action belongs more appropriately in the federal courts, or, more properly, presented to the Congress of the United States in the form of an amendment to the United States Constitution, which then would be submitted to the states of our union to accept or reject such an amendment.
Finally, a more relevant jurisdiction for this writ of mandamus would be the federal courts in a complaint against the secretary of state of the State of Michigan, whose responsibility will be to accept the recall petitions, direct their processing, determining the total number of signatures, and finally, setting a date for the recall election.
1. The legality of the recall petition and its timely submission to the board of election commissioners was proper.
2. The challenge by the plaintiff as to the constitutionality of the petition served only to confuse the members of the Lenawee County Board of Election Commissioners.
3. The filing of this complaint, requesting a writ of mandamus, which, as I understand it, should not be used in the place of appeals, which is exactly what Michigan state law directs to the plaintiff if he is dissatisfied with the decision of the Board of Election Commissioners.
4. This defendant requests that the court dismiss this complaint and invoke the provisions of Paragraph (7), Section 168.952, extending the recall period of time from 90 days to 180 days to collect the necessary signatures.
5. Are there any questions?
I'm sure we'll be seeing media reports on this in the next two days or so.
Labels: James Carr, Recall, Tim Walberg