Judge hears arguments in Pearce recall challenge - East Valley Tribune: Ahwatukee Foothills

Judge hears arguments in Pearce recall challenge

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Posted: Monday, August 8, 2011 5:08 pm | Updated: 1:18 pm, Wed Oct 10, 2012.

An attorney for those seeking to oust Senate President Russell Pearce asked a judge Monday to let the scheduled Nov. 8 recall election go forward.

Tom Ryan said that the petitions submitted meet the legal requirements to force an election. More to the point, he told Maricopa County Superior Court Judge Hugh Hegyi that the objections from attorney Lisa Hauser, representing Pearce supporters, are without merit.

But Hauser argued that the Arizona Constitution requires strict compliance with the regulations governing recall before there can be the unusual step of kicking an elected official out of office in the middle of a term. And she said the petitions do not meet those requirements, voiding all of the more than 18,000 signatures submitted, including 10,365 county officials determined were valid.

The more than two hours of legal arguments sometimes took on comic tones as attorneys sought to make their point.

One issue surrounds a provision in the law which permits recall organizers to put a statement of up to 200 words on the petitions about why they are seeking the election.

In this case, recall organizers said in the statement that Pearce has failed to focus on issue of concern to all Arizonans, saying someone is needed who will focus on education.

But what concerned Hauser is that the statement said that by signing this petition, "we publicly withdraw our support for Russell Pearce and what he represents.'' That, Hauser argued, could confuse people into thinking they were just signing some statement of discontent rather than a legal document to force an election.

Ryan said all that is legally irrelevant. He said nothing in the law requires those seeking a recall to cite any reason at all.

"For example, it could have said that Russell Pearce likes to fribbin in a banana patch in his whitey-tidies,'' he told Hegyi.

"That's a completely nonsensical statement,'' Ryan said, explaining later than he does not know what "fribbin'' is but that it comes from an old Steve Martin routine.

"The recall statement could have been something as simple as, 'We're dissatisfied voters, we don't like you any more,' '' Ryan said, saying that, unlike some states, Arizona does not require a specific reason to seek a recall, meaning it can be done "on a whim.''

Hauser countered that the only thing allowed in those 200-word statements are the grounds for a recall. And she defended her contention that anything else in the statement could be confusing, even while acknowledging that the petition itself says, right on its face, that it seeks a recall.

"My gosh: How can anyone be so ignorant as to not understand what they're doing when they sign this petition?'' she asked Hegyi rhetorically. "Well, all you have to do is watch Jay Leno's man on the street interviews a few times and it will shake your confidence in how well informed people are.''

Hauser also told the judge he could throw out all the petitions because the legally required affidavit signed by circulators did not swear that each of the signatures is "genuine.'' That is the word used in the section of the Arizona Constitution.

But Ryan said circulators did swear that the signatures on the petition were signed in their presence, on the date indicated and that the signers did print in their own names and addresses. He said that complies with what the Constitution requires, even if the oath does not use the word "genuine.''

Hauser is already working with one major legal strike against her.

The Arizona Supreme Court has ruled that recall petitions do not need to comply "strictly'' with the legal requirements but only "substantially.'' That is a far lower burden, with courts giving more leeway to allowing a recall election to proceed despite what might be technical mistakes by petition circulators.

Hegyi asked whether he, as a trial judge, can ignore that ruling, even if it occurred nearly 90 years ago.

"Your power to overturn a Supreme Court decision, no matter how old, is admittedly limited, or non-existent,'' she responded.

But Hauser told Hegyi that he should say if he rules against her solely based on his belief that the petitions "substantially comply'' with the law. She said that will give the Supreme Court, where the case eventually will wind up, the chance to decide whether to overturn its earlier ruling.

Hegyi has promised a ruling by the end of the week.

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