Rice wins lawsuit to stop recall election

Posted July 5, 2012 at 12:21 pm

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“The Court finds that the petition is defective,” Circuit Judge James Bickel ruled at the conclusion of a 40-minute hearing last Wednesday, June 27. He then said that the County Clerk is enjoined from holding the recall election on District 1 Ambulance Board Member Sue Rice who filed the suit against County Clerk Peggy Kenney to stop the election.

Rice’s attorney, Jason Smith, during the hearing, told the judge that none of the 86 pages of signatures on the recall petition submitted by Darrell Martin, Dixie Mogan and Tamara Blystone had the affidavit on each page required by the new law, 190.056. Of the three, only Martin was present at the hearing, along with a group of about 30 people primarily from Stockton, Jerico Springs and Caplinger Mills.

Smith said there were two questions for Judge Bickel to decide:

1. Does the petition comply with 190.056?

2. If not, is this the appropriate time to consider it?

Smith said, “The petition does not comply. The defendant has never suggested that it does.”

Smith argued that now is the appropriate time citing many times courts had ruled on issues before an election.

The County Clerk’s attorney said the new law “created a problem for the County Clerk.” He said it did not give her the authority to challenge faults in a recall petition and it required a County Clerk to do three things when presented with a recall petition on a ambulance board member:

1. Determine if there is an adequate number of signatures.

2. Notify the ambulance district board that there is an adequate number of signatures on the petition.

3. Set up an election within the time frame specified in the statute.

Judge Bickel, who had requested the original of the petition at the beginning of the hearing, said, “It is clear to me that the County Clerk complied with her duties.”

The County Clerk’s attorney continued, “Even if the petition is faulty, her office can just not count the ballots.”

Rice’s attorney told the Court, “All of case law says it is absolutely appropriate to rule pre-election.”

Judge Bickel said, “The Court believes it does have the authority to consider this matter at this time.”

Judge Bickel said the case “turns on the affidavit.”

He said there is a declaration on one side of each two-sided page of the 86 page petition. “But a declaration is not an affidavit.”

He then ruled the petition defective and stopped the election.

Webster’s dictionary defines an affidavit as a sworn statement in writing made especially under oath or affirmation before an authorized magistrate or officer. Such statement is witnessed as to the authenticity of the affiant’s signature by a taker of oaths, such as a notary public.