Judge Elsenheimer Threw Out the TCAPS Recall Petitions. Was He Right?

TCAPS board members Matt Anderson and Pamela Forton appealed the language of their recall petitions. Anderson’s argument appears to be that he was elected in the first place (hence the term “recall,” Matt). The issue before the court was whether the language was clear and factual for the recall petitions.

Judge Elsenheimer, in a surprise move, threw out the petition on completely different grounds. He said that you can’t file a recall petition in the elected official’s first year in office.

Is that right?

Before we start, here is the link to all the laws we’re going to talk about: Michigan Election Law

Michigan Compiled Law 168.951 says that you can’t file a petition until the elected official has actually performed their duties in office for one year.

But is submitting a petition what the recall people did? Or did they just submit the language for pre-approval in order to start circulating a petition?

MCL 168.952b says that petition language shall not be submitted to county election commissioners to determine if it is factual and clear within the first six months the elected official is in office.

That’s what the petitioners did. They didn’t file the petition as in submitting it with signatures to trigger the vote. They just submitted the language for approval. That’s allowed any time after 6 months in office.

MCL 168.961 says that a recall petition is filed with signatures. It’s filed with the county clerk of the county with the largest portion of registered voters, or Grand Traverse County. (BTW, if submitting the language counted as filing filing the petition for the purposes of the 1-year block out period, officials shouldn’t have kicked the Sue Kelly one to Leelanau County because the petition has to go to GT County for this reason. But they did. So they’re contradicting themselves.) MCL 168.954 further clarifies by stating that the recall petition is the document that is signed by the qualified electorate. In other words, it’s not the preliminary language alone.

Judge Elsenheimer confused the preliminary discussion of language with the actual filing of the circulated petitions with all the signatures. That’s what can’t be filed until after the first year, not just the preapproval of the language which can be filed any time after six months. Did he make the mistake on purpose, or was he looking for a particular outcome?

By raising the issue on his own, without notice to the parties, Elsenheimer did a number of things. First, he held a hearing without notice. I looked all of this up in 15 minutes. If the people behind the petitions had notice of Elsenheimer’s stance, they could have looked up this same law and been prepared to challenge him. In effect, he denied due process to the litigants before him. Second, he protected fellow Republicans and the incumbent protection plan that is Traverse City. Third, he undermined the recall effort by painting them as though they don’t know what they’re doing. Fourth, he kicks the can and sets back the timeline for the recall process, denying due process to everyone in the TCAPS district.

DirtyTraverse. What’s new.

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3 thoughts on “Judge Elsenheimer Threw Out the TCAPS Recall Petitions. Was He Right?”

  1. Kevin Elsenheimer (born August 21, 1965) is an American judge, lawyer and politician from Republican Party and a former minority leader of the Michigan House of Representatives. He is the former Director of the Michigan Workers’ Compensation Agency and Deputy Director and Senior Deputy Director of Michigan’s Department of Licensing and Regulatory Affairs (LARA). He served in the cabinet of Michigan Governor Rick Snyder as Executive Director of the Michigan State Housing Development Authority (MSHDA). He was appointed 13th Circuit Court Judge by Governor Rick Snyder in January 2017.
    Gee, who would have guessed he was a republican.
    I wouldn’t be surprised if some TCAPS misapproprated funds directly or indirectly made their way back to the likes Elsenheimer , Moeggenberg, Phillips and Cooney

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