Recall Hearing

At 9am Tuesday morning (02/06/2007) The Honorable Steven H. Goldman, Circuit judge (Division 12) in St. Louis County was scheduled to hear the suit filed by Mayor Ann Purzner to block the Recall from appearing on the April 3rd ballot. The Judge chose to speak to the attorneys from both sides in his chambers. A few hours later it was over and we learned that the Judge was going to review the arguments and issue a ruling by Thursday.

With nothing to watch, reviewing the legal fillings seemed appropriate. The Mayor's case comes down to a few areas, most of which we have covered here before.

First, there's the contention that an ordinance is required by RSMo 77.655 to send the measure to the Election Board. Though the Mayor's legal filings state: "as a matter of law an ordinance is required to place a recall election on the ballot pursuant to section 77.655". There is no reference to "ordinance" in that statute, and the Mayor's council makes no reference to any legal precedent that would establish this to be "a matter of law".

An important point to consider when reading these statutes is that whenever an ordinance is required it is clearly identified as required. For example, in RSMo 77.170 it says in part "in proceeding by ordinance" the city may purchase and condemn lands, and in RSMo 77.490 the city "by ordinance" may regulate rates for telephone service within the City. In RSMo 77.090 which establishes among other things, that Council shall keep a journal (aka minutes) and may "enforce such rules as may be necessary to secure the attendance of its members" there is no reference to the need for an ordinance here, just as there is no reference to the need for an ordinance in RSMo 77.655 when "ordering" that the Recall measure be placed on the ballot. It seems obvious, based on a reading of Chapter 77 (third class cities) as a whole that if an ordinance was required the authors would have specifically used the word "ordinance". If an ordinance is not required then a motion is all that's needed, such as the motion that was passed at the December 12th, 2007 Council meeting to send the Recall measure to the election board (as shown here).

Though the Mayor's filings reference several failed attempts to pass an ordinance to add the Recall measure to the ballot, they make no reference to that motion that successfully passed on December 12th, 2006. As we referenced in this article there was a rumor that the Mayor's legal team was going to argue that the December 12th vote didn't happen. That's why I dislike rumors and why I insist on identifying them as such, they are generally inaccurate. The Mayor's case didn't argue that this vote didn't happen, it merely ignored its existence all together. I assume the Mayor now has a copy of this evidence which might help her "recall" the event.

Another argument made in the Mayor's filings is "...the Recall petition is legally insufficient to meet the standards required in Section 77.650 RSMo." For your review, the acceptable reasons for a Recall according to RSMO 77.650 are "misconduct in office, incompetence or failure to perform duties prescribed by law." The reasons for Recall that appear on the petition (according to the filings) are:

1.Mayor Purzner unlawfully attempted to remove Police Chief James Herron from Office and

2.Mayor Purzner unlawfully violated the Sunshine Law, RSMo 610.020.1 by scheduling meetings in a space of insufficient size to accommodate the anticipated attendance by members of the public.

Not only are these issues violations of both Missouri Statutes and Overland Ordinances, in my opinion they are also examples of "failure to perform duties prescribed by law" as the violated measures tell elected officials how they are to govern. Though failure to follow them may be considered misconduct, incompetence, or both, there would seem to be no question that violating them would be a "failure to perform duties prescribed by law" at the bare minimum.

There are also several references in the filings to the concept: "if the standard of 77.650 RSMo is met merely by a Mayor of a third class city for being involved in two lawsuits then all mayors and officials are subject to recall". The problem here is that this doen't directly address the issue at hand. The Recall is about the unlawful actions the Mayor took that were later confirmed to be unlawful by the St. Louis County Judges who heard those suits. The Recall, like the suits, resulted from the Mayor's actions and if the Mayor (an others) had followed the law to begin with, we wouldn't be dealing with this today.

Ultimately the decision in this case rests with the Judge. However, I, as a layman, still haven't seen anything to suggest that the Mayor could possibly succeed in this case. Between now and Thursday the Judge will issue his ruling and we'll learn if my assessment was correct.

Though everything happened in the Judge's chambers and there was not much to see I did find ways to pass the time. I had an opportunity to discuss the future of newspapers with Norm Parish from the Post-Dispatch and had a bit of fun discussing silly life experiences like misplaced cell phones and the like with Mayor Purzner and others.

It wasn't all fun and games though. Early on, I spoke with Election Board officials about what adding this measure to the ballot might cost the city. It was estimated that the additional cost to the city would be approximately $25.00 (yes, that says twenty five dollars). That's a far cry from the estimates of $30,000.00 or more it could cost the city to hold a special election (as required in RSMo 77.660) should the measure be pulled from the April ballot only to be authorized later if the Mayor fails to permanently block the Recall.

Towards the end, City Attorney Bob Herman pulled me aside. I half expected him to chastise me for my legal interpretations in previous articles. Instead, he was kind enough to show me where the law library in the building was and walked me though the various legal references there. He showed me how to use them, and more importantly, how they worked together. I'm thankful to Mr. Herman for giving me that time. I certainly learned the basics of a skill I'll likely employ in the future. As it turns out Mr. Herman likes to teach, and I had a lot to learn so it worked out perfectly (and who knew people still used these "books" as he called them).