Judge Voids Two TCAPS Recall Petitions - But Petitioners Immediately Re-File
By Beth Milligan | Jan. 14, 2020
Thirteenth Circuit Court Judge Kevin Elsenheimer voided a recall petition against Traverse City Area Public Schools (TCAPS) trustees Matt Anderson and Pam Forton Monday, stating that petitioners had filed the language incorrectly. But community group TCAPS Transparency, which is mounting the recall effort, officially re-filed paperwork immediately after the ruling in order to press ahead with the campaign.
Anderson and Forton both appealed a November decision by the Grand Traverse County Election Commission approving recall language submitted by TCAPS Transparency. The petition language reads: “(Name of elected official) voted for Superintendent Ann Cardon to start August 1, 2019, but within 78 days of service, (name of elected official) voted to terminate Ann Cardon’s employment within Traverse City Area Public Schools on October 17, 2019 in a mutual separation agreement, costing the district and taxpayers $180,000 in severance pay.” Both Anderson and Forton argued that that language - particularly the term "terminate" - was deceptive and would mislead voters, as Cardon was not fired from the district but resigned.
"The wording to me is not clear, nor is it factual," Forton told Elsenheimer in court Monday.
Elsenheimer dismissed that argument, saying he found the petition language "sufficient" and "acceptable." Had the trustees' appeal rested solely on that issue, the ruling would have favored TCAPS Transparency, according to Elsenheimer. But the judge determined another argument made by Anderson's legal counsel - that the timing of the language’s submittal was illegal - was valid. Elsenheimer cited state law that indicates a recall petition cannot be submitted against a four-year trustee until they've completed one year of their term. The one-year completion date would have been December 31 for Anderson and Forton; TCAPS Transparency filed its petition language for review in early November.
According to Michigan's Bureau of Elections, however, Elsenheimer may have cited the wrong statute in making his ruling. The law cited in the decision refers to the filing of actual petition signatures. A separate section of Michigan law states that when it comes to submitting petition language for review - as TCAPS Transparency did - that process can occur as soon as a trustee has served for six months. Based upon that distinction, county election officials had advised TCAPS Transparency they were following the law when they filed petition language in November.
Justin Van Rheenen of TCAPS Transparency told The Ticker after the hearing that he was "disappointed in the voiding of the petition," adding: "We were led to believe by both county clerks of Leelanau County and Grand Traverse County that the filing of the language was different from the filing of the final petitions." (TCAPS Transparency is mounting a separate recall effort against TCAPS Board President Sue Kelly in Leelanau County, where she resides; Kelly is also appealing the petition language in that jurisdiction in a February 3 hearing.)
Despite the legal confusion over deadlines and the setback of Monday's ruling, Van Rheenen said his group was "excited (about) the fact that the language was found to be acceptable and sufficient." Immediately following the hearing, Van Rheenen officially re-filed the group's recall language against Anderson and Forton in Grand Traverse County. County Clerk Bonnie Scheele confirms she received the language, with the Election Commission set to vote on approving it again sometime in the next 10-20 days. Van Rheenen did not make any changes to the resubmitted language, expressing his confidence after Elsenheimer's remarks that it would hold up in court.
Forton said after the ruling that she found Elsenheimer's decision to be a "a little surprising in one way, and unexpected in another." She said she was unsure how she would respond to further action from TCAPS Transparency, adding: "All I know is I broke no laws, I have not lied, I broke no promises to Ann Cardon."
Anderson said he was "obviously thrilled" with Elsenheimer's decision and would "absolutely" appeal again if the Election Commission approves TCAPS Transparency's language for a second go-round. "It's a smoke screen to the truth, is what that language is," he said. Anderson also said he was uncertain why he was being targeted for a recall by TCAPS Transparency. "I had over 19,000 people vote for me in the last election, the number-one vote getter," he said. "I wasn't involved with any of the closed-door sessions (that prompted Cardon's resignation), or anything leading up to that. So I actually don't even know why I'm here."Comment