TRAVERSE CITY — A January decision to void recall efforts against two Traverse City Area Public Schools trustees has been reversed.
Judge Kevin Elsenheimer issued a written opinion Friday afternoon in which he granted an appeal from the Grand Traverse County Election Commission requesting he revisit his decision on the lockout provision of the recall efforts against TCAPS Board of Education members Matt Anderson and Pam Forton.
Elsenheimer, in his Jan. 13 ruling, cited a state law that mandates no elected official serving a four-year term can be recalled in the first or last years of his or her term. Kit Tholen, deputy civil counsel for Grand Traverse County, argued in a Jan. 29 brief that language for a recall petition can be submitted within six months of an elected official’s first year in office.
The 13th Circuit Court judge cited several state statutes and case law in his written ruling, including MCL 168.952b, which states that a recall petition cannot be submitted to the board of canvassers or a county election commission until an elected officer has “actually performed the duties of the office to which a elected for a period of six months.” Elsenheimer ruled that particular statute “governs when recall petitions may be submitted” and therefore granted the motion for reconsideration and found the submission timely.
Anderson and Forton each eclipsed the one-year mark on Dec. 31, 2019. The original petition was filed Nov. 8, which Elsenheimer previously said was inappropriate and not timely under the lockout provision — resulting in voiding the petition in full. That Nov. 8 filing, however, came after the six-month provision had passed.
“I believe it’s the correct outcome, and I know Judge Elsenheimer works hard to get the correct outcome,” Tholen said.
In a separate but related ruling in Leelanau County, Elsenheimer ruled the recall petition against TCAPS Board President Sue Kelly is also timely. Elsenheimer declined to make a ruling on the lockout provision during a Feb. 3 appeal hearing because of the motion for reconsideration filed by Tholen just days before.
Kelly, Anderson and Forton all failed to return calls for comment late Friday afternoon.
Justin Van Rheenen is the sponsor on the Kelly recall petition and a co-founder of TCAPS Transparency, a group formed in the weeks following the unexpected resignation of former Superintendent Ann Cardon in October 2019.
The language on the petitions specifically cites Cardon’s departure and its $180,000 cost to the taxpayers in severance pay as reason for the recall. That language has been determined to be clear and factual by both the Grand Traverse and Leelanau county election commissions as well as Elsenheimer upon appeal.
Van Rheenen said he was pleased with Elsenheimer’s ruling.
“You hope that he’s going to rule in favor of what you understand is the law, what both county election commissions view as the law, but anything is up in the air until it comes down,” Van Rheenen said. “I’m excited we were able to get all of these decisions in one day.”
Van Rheenen also filed separate petitions to recall Anderson and Forton, which were originally filed by Ian Ashton, after Elsenheimer voided them. That means there are currently two recall petitions against Forton and Anderson that are active and valid. Van Rheenen said the group will make a decision on which petitions to pursue when they receive clarification regarding the timeline for the recall.
Grand Traverse County Clerk Bonnie Scheele said she is not sure what Elsenheimer’s original decision, which dismissed the petitions, does to that timeline. Law states that the language on a petition is valid for 180 days after it is deemed clear and factual. Elsenheimer ruled both petitions met that burden before he voided them at the same Jan. 13 hearing.
So the question is whether the clock stopped on those 180 days when Elsenheimer threw out the petition.
Scheele told Van Rheenen she is working to get an answer to that from the Michigan Bureau of Elections. Until such an answer is given, Van Rheenen said they will wait.
“The real key is if they want to get signatures for a recall, they can only get them within a 60-day time frame,” Scheele said. “Whenever it is in that 180-day time frame that they decide to start collecting signatures, they have 60 days to turn them in.”
Van Rheenen and others are in the clear to begin collecting signatures immediately, but Van Rheenen said they’ll likely wait until May to start that 60-day clock.
A recall petition, including the necessary 11,700 valid signatures, is due by either July 12 — depending on clarification on the timeline — or July 31 if the recall election is to appear on the Nov. 3 ballot.
“We want to have enough time to process everything and make sure we’re good on our end,” Van Rheenen said.
If the recalls petitions are verified, six of the seven seats on the TCAPS board will be up for a vote in November, including those currently held by Jeff Leonhardt, Jane Klegman and Ben McGuire.