Appeals Court Orders Response to Demand For Certification (**Updated)

If you are keeping score, earlier this week, the Second District Court of Appeal lifted the stay on the recall vote to the extent it allowed the vote to be counted. The count was conducted Monday. The stay on certification of the vote, the administative action that determines the legitimacy of the election, continues due to the pending appeal by Commissioner Stoltzfus.

But the Citizens For Sunshine folks, that being Michael Barfield's pal Andrea Mogensen, and Recaller Robert Carter have both filed requests that the stay on certification also be lifted. You can read those HERE and HERE. The court is obviously taking the requests under consideration because it has ordered Commissioner Stoltzfus to file a response to those requests by 3 p.m. this afternoon. You can read the order by clicking HERE.

(**Update 9/15/10 3:40 p.m. : Stoltzfus attorney Richard Harrison has filed the required response which you can read by clicking HERE. In short, among other points he argues that (1) that there is nothing for the court to "reconsider" as requested by Carter because the court granted the only thing requested the first time: unsealing the ballots; (2) Neither Mogensen nor Carter even attempted to established that Judge Nicholas "abused his discretion," a requirement to overturn a trial judge's order; (3) that Judge Nicholas appropriately weighed the competing harm that would befall the parties should the stay not be ordered and found the potential for harm to Commissioner Stoltzfus' to be "tangible, clear and irreparable"; and (4) that the Second District does not even have jurisdiction over the relief sought by Mogensen.)

Mogensen and Carter both argue that there is some sort of statutory deadline of Monday September 20, 2010 to have the vote certified or be deemed "moot" and "meaningless." So, unless the appeals court answers the big question, the validity of  the recall petition (highly unlikely since the parties have not been given the opportunity to submit and argue their respective positions), the question they want the court to answer now becomes: do laws governing the administration of elections trump an individual's right to a full, lawful and considered appeal? Seems like an easy one. If the rule of law does require the court to allow certification by Monday noon and Gene Aubry assumes the commission seat, what happens when the same court later determines that the recall petition was fatally flawed? Like Judge Nicholas said, "tangible, clear and irreparable harm," will result, and not just to Mr. Stoltzfus. Your city will never be the same.

Regardless of your position on the broader issues, there can be no disagreement that early and definitive judicial intervention regarding the validity of recall petitions would prevent such municipal chaos. This thing could have been put to bed in May but instead was left to languish all summer (and by next Wednesday into fall) at significant expense to the city, the parties and the elections office.

Expect something from the Second District addressing the request by the end of the week.

Stay informed

Bill Yanger