Stoltzfus recall: Election yes, results no
By Rick Catlin
Islander Reporter
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Manatee Circuit Court Judge Edward Nicholas leaves the courtroon following his ruling in the Harry Stoltzfus v. Robert E. Carter, chair of the Recall Harry Stoltzfus Committee case Sept. 3. Nicholas ordered the Sept. 7 election to proceed, but granted stay on the certification of the results and the sealing of all ballots. Islander Photo: Bonner Joy
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View Recall Stay and Amicus. |
Manatee County Circuit Court Judge Edward Nicholas ruled last week that the Sept. 7 vote on the recall of Anna Maria Commissioner Harry Stoltzfus will proceed as scheduled, but he also ordered the ballots sealed.
No results will be announced, and Nicholas ordered a stay on the certification of the results.
Nicholas ordered Manatee County Supervisor of Elections Bob Sweat to withhold certification of the election until the Second District Court of Appeal further stays the election, rules on Stoltzfus’ appeal of his Aug. 24 order to proceed with the recall, or his stay ruling expires.
“I understand the import and impact of this decision,” Nicholas said after hearing oral arguments by attorneys representing Stoltzfus and the Recall Commissioner Stoltzfus Committee. “But it is not a difficult decision. It is a balance of rights,” between Stoltzfus and the citizens of Anna Maria.”
Nicholas said his stay order is effective until 5 p.m. Sept. 24 unless extended by the appeal court or the appeal is heard and resolved. The ruling includes absentee ballots, the judge said.
He made it clear that the ballots and results would be open to the public if his order sealing the vote expires without an extension or other ruling by the appeal court.
Stoltzfus appealed Nicholas’ Aug. 24 ruling, but the court responded it needed a final order to have jurisdiction. The appeal court said the problem could be resolved with some word changes by Nicholas to his original order.
At the Sept. 3 hearing, Nicholas agreed to add “the magic words” to the Aug. 24 order that would allow the appeal court to proceed.
Harrison directed Stoltzfus to “seek expedited review of the matter,” but noted, the scheduling is “out of my hands.”
Recall Commissioner Stoltzfus Committee chair Bob Carter had argued through attorney Fred Moore that the election should proceed as scheduled and the results should be announced after the poll closed. Because the ballots are public records, the vote should be made available to the public immediately, he said.
Attorney Andrea Flynn Mogensen, representing the Citizens for Sunshine Inc., a public interest group dedicated to transparency in government, was allowed by Nicholas to present an amicus, or “friend of the court,” brief. Mogensen said the votes should be made public immediately after the election.
“Every citizen has a right to inspect the public records and there is no exception in this case,” she argued.
“Nothing could be more obvious (a public record) than a ballot, and a request to seal (the ballots) is contrary to law. We request the court not seal the ballots,” Mogensen said.
In his ruling, Nicholas said there is “little harm” to the citizens if the election takes place and the results are withheld pending Stoltzfus’ appeal.
Moore argued that the announcement of the election results could be delayed for months, possibly until the summer of 2011. If Stoltzfus is recalled, what happens to commission decisions during that time, he asked?
That also was the claim by Anna Maria city attorney Jim Dye, representing city clerk Alice Baird, who is a defendant because of her official duties.
“Like the supervisor of elections, the city is maintaining neutrality,” Dye said.
But if the results of the election become known before certification, and Stoltzfus was recalled by the voters, but still on the commission, it might create chaos for the commission, particularly in any 3-2 vote, Dye said.
“The commission could be sitting and possibly knowing that one commissioner should not be on the board,” he said.
Manatee County Supervisor of Elections Bob Sweat said, after the ruling, that the voting machine used for the recall election would be sealed after the poll closes at 7 p.m. Tuesday. The ballots are fed into the machine by the voter, the machine tabulates the results and the SOE staff feed in the absentee ballots, he said, for a final tabulation.
A code is needed to open the machine and view the tabulated results. Sweat said no code will be issued until the appeal court rules or Nicholas’ stay order expires without a stay from the appeal court.
No one at the elections office or from the Anna Maria Canvassing Board will see the results, said canvassing board member Sherry Oehler.
Hearing origin
After the Recall Commissioner Stoltzfus Committee delivered its two required petitions to the SOE and the circuit court, Stoltzfus filed a motion to have the recall dismissed on the grounds the petition was legally insufficient.
Prior to Nicholas hearing the Stoltzfus dismissal motion on Aug. 12, Twelfth Circuit Court Chief Judge Lee Hamond ordered the recall election be held Sept. 7, unless Nicholas ruled in favor of Stoltzfus.
Nicholas denied the Stoltzfus challenge in an Aug. 24 decision and upheld the petition, which allowed the recall to proceed.
Stoltzfus immediately appealed to the Second District Court of Appeals and sought an expedited hearing, but the appeal court dismissed that request because Nicholas’ Aug. 24 order was not in proper form.
That technicality was solved when Nicholas added the correct language to his order at the Sept. 3 hearing, and Harrison said he would immediately seek an expedited hearing with the appeal court.
After court was adjourned Sept. 3, Harrison said he was satisfied with Nicholas’ ruling.
Nicholas “had to strike a balance,” and he did, Harrison said. The order allows his client time to file an appeal and preserves the integrity of the election.
Mogensen, however, said she was “not pleased” with the ruling and would consult with her client — Citizens for Sunshine Inc. — about any further course of action.
“I would think my client will exercise authority to appeal,” she said. “I don’t think they want to wait a month” for an answer.
The ruling was a “surprise” to Mogensen because Nicholas had indicated Aug. 24 that the election should proceed as scheduled.
“I’m also not sure (Nicholas) has the authority to seal ballots,” she said.
Mogensen indicated that following the vote on Sept. 7, she will likely make a public records request to review the ballots.
Moore indicated he would discuss the ruling with Carter to determine if any further action is necessary, but Carter said the committee will await the appeal court ruling before making a decision.
In the shade
Prior to the start of the Anna Maria commission’s Sept. 2 public hearing, Anna Maria city attorney Jim Dye held a shade meeting with the commission about the Sept. 7 recall election of Commissioner Harry Stoltzfus.
Stoltzfus attended the shade meeting, which was not open to the public.
Dye declined to comment on the discussions at the shade meeting.
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