Recall enjoined for all for now

Cave Creek Caring Citizens Committee has initiated a new recall effort against the four slate councilmen and vows to do it correctly this time

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kerry smithCAVE CREEK – Following oral arguments on Wednesday, June 18, Superior Court Judge Robert Oberbillig issued an order stating there would be no recall election against councilmen Mike Durkin and Charles Spitzer and enjoining the Town of Cave Creek and Maricopa County from taking further action to conduct a recall.

The special action petition was filed against Susan Clancy and Hani Saba, respective chair and treasurer of the Cave Creek Caring Citizens Committee, by Attorney Tim La Sota on behalf of ASU professor Vincent “Kerry” Smith, immediately after La Sota prevailed in another case brought by Vice Mayor Adam Trenk and Councilman Reg Monachino, which eliminated enough petition sheets to enjoin the recall against them.

mike durkinSmith, who chaired the Citizens Concerned for Cave Creek Committee, failed to obtain sufficient signatures to recall councilmen Ernie Bunch and Thomas McGuire.

Jasper Altaha, a Maricopa County Elections supervisor, testified as to reasons certain signatures were found invalid, stating “statutory, not by signer,” explaining the address information was filled out by someone other than the person who signed the petition.

In situations where they were unable to determine which person, such as a husband or wife, filled out the other person’s information, Altaha stated they were both invalidated.

Although the law allows for others to sign and fill out information for registered voters unable to do so for themselves, the county also invalidated both former Town Manager Usama Abujbarah’s signature and his daughter Kinda’s, who has a physical infirmity and is unable to sign for herself.

Janet Mohr, who collected signatures for the recall, testified that statute only requires circulators to witness that each person signs for himself.
charles spitzer
However, La Sota argued the affidavit signed by the circulators states “I … under the penalty of a class 1 misdemeanor, depose and say that subject to Section 19-115, Arizona Revised Statutes, each individual printed the individual’s own name and address and signed this sheet of the foregoing petition in my presence on the date indicated, and I believe that each signer's name and residence address or post office address are correctly stated and that each signer is a qualified elector of the state of Arizona (or in the case of a city, town or county measure, of the city, town or county affected by the recall) and that I am qualified to register to vote and all signers of this petition are qualified to vote in the recall election.”

A.R.S. § 19-115 states:

“A. Every qualified elector of the state may sign a referendum or initiative petition upon any measure which he is legally entitled to vote upon.

“B. A person who knowingly signs any name other than his own to a petition, except in a circumstance where he signs for a person in the presence of and at the specific request of such a person who is incapable of signing his own name or printing his own name and address because of physical infirmity, who knowingly signs his name more than once for the same measure or proposed constitutional amendment at one election, who is not at the time of signing a qualified elector of this state or who knowingly fills out the name and address portion of the petition with the intent to commit fraud, or any officer or person who knowingly violates any provision of this chapter, is guilty of a class 1 misdemeanor unless another classification is specifically prescribed in this title.”

Oberbillig initially stated he was troubled because the law requires substantial compliance and mere technical deficiencies shouldn’t invalidate an entire petition unless fraud was involved.

La Sota argued the affidavit signed by the circulators swearing they witnessed each person fill out their names and address when they had not should invalidate the entire petition, not just the signatures invalidated by the county.

Oberbillig, who said he wanted to read the Parker v. Tucson opinion, took the matter under advisement and stated he would issue a ruling in open court in about 15 minutes.

When Oberbillig returned, he commented on the falsification by circulators in Parker said the evidence was largely undisputed in this case and the county was correct in eliminating signatures, citing there was a lot of strong “shall” language in the Parker ruling.

After eliminating entire petition sheets on the basis of “knowingly false circulator affidavits” and doing a mathematical analysis of the remaining signatures, Oberbillig concluded the valid number of signatures fell short of the 293 required for both Durkin and Spitzer and ordered the recall permanently enjoined.

Meanwhile, Cave Creek Caring Citizens Committee has initiated a new recall effort against the four slate councilmen and vows to do it correctly this time.

However, it does not appear there is enough time, once sufficient signatures are collected, to hold a recall election in conjunction with the November General Election.

Under the new consolidated election laws, the next possible date to call for a recall election is March 10, 2015.

Kerry Smith, Mike Durkin, Charles Spitzer

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