Russell Pearce Legal Challenge Argued Before Judge Hugh Hegyi

State Senate President Russell Pearce was a no-show today to the hearing that could, hypothetically, save his hide in the upcoming November 8 recall election in Legislative District 18. 

Ditto the official plaintiff in the legal challenge to the recall: Mesa resident Franklin Bruce Ross, who also had better sheep to shear.

All the same, Maricopa County Superior Court Judge Hugh Hegyi's court was packed to overflowing with lawyers, elections officials, Pearce foes and supporters, as well as members of the media, many of whom had to take up temporary residence in the jury box for a two hour hearing wherein opposing counsel debated the intricacies and history of recall election law.

At issue were the defendants' motions to dismiss the complaint brought by Republican elections law attorney Lisa Hauser

In her original complaint, Hauser argued that all of the signatures on the recall petition should be tossed. Why? Because the wording of the oath sworn to by the petition circulators (which appears on the reverse of the petitions) did not attest that the signatures were "genuine."

This, despite the fact that the wording of the oath was provided by the Arizona Secretary of State's Office, and that it states that the signers signed in the circulator's presence and the circulator believed that the signatures and addresses of the signers were correctly stated.

Indeed, the state constitution does not specify what the wording of the oath should be. What it says, is this:

"One of the signers of each sheet of such petition, or the person circulating such sheet, must make and subscribe an oath on said sheet, that the signatures thereon are genuine."

As Thomas Ryan, attorney for the recall committee Citizens for a Better Arizona, pointed out, the state constitution doesn't mandate the use of the word "genuine," just that there be "an oath" where the circulator attests that the signatures are genuine.

Ryan observed that in order for Judge Hegyi to not find the oath in "substantial compliance" with the constitution and election law, he would have to "overturn nearly 90 years worth of jurisprudence." A point Hauser later conceded, BTW.

Indeed, Hauser admitted that Hegyi doesn't really have the authority to overturn past Arizona Supreme Court rulings in this matter. Ultimately, the issue will have to be decided by the state supremes, and Hauser was laying the groundwork today for just such an appeal.

Hauser also maintained that part of the recall statement is misleading, specifically the last sentence, which reads, "By signing this petition we publicly withdraw our support for Russell Pearce and what he represents."

So someone might not have understood that there would be a recall election as a result of them signing, she argued.

This, despite the fact that at the very top of the petition sheets, the following statement was plain as day: 

"We, the qualified electors of the electoral district from which State Senator Russell Pearce, District 18, was elected, demand his recall."

How could someone be so dumb as to misinterpret the meaning of this statement? 

Well, Hauser told the court, "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 informed people are."

During his time, Ryan countered that as long as a petition signer is a qualified elector, the reason why they signed is irrelevant, and that the courts have already held that the recall statement can say anything it wants.

"It doesn't matter why a petition signer signed the petition," he explained. "For example, you could have said that `Russell Pearce likes to [go] fribbin' in a banana patch in his whitey-tidies,' [though] that's a nonsensical statement."

Now there's a mental picture I didn't need. Um, whatever "fribbin" means.

At another bend in the proceedings, Hauser argued that the oath of the circulator was effectively invalidated if one of the signatures on a petition sheet was not legit. So the whole sheet, not just that signature, should be tossed as a result.

That would essentially disenfranchise everyone else who signed the same sheet. But legal precedent is unlikely to give Hauser the day on this point either. 

After the hearing, I had fun asking Hauser that if there were mistakes in a sworn legal document, did that make the signer's oath invalid?

She agreed that it should. I then observed that there were mistakes in her reply to the motions to dismiss, incorrect dates used, and a stray incomplete sentence, to boot. So should her entire filing be tossed as well?

As you might imagine, she did not agree this should be the case.

At one point in the hearing, Hauser complained that the recall process was highly disruptive, causing angst to a politician so targeted.  She also went on and on about the history of the recall process, though this has little to do with what the judge actually must rule on.

Ryan countered that Pearce hadn't even bothered to show up, and while on the subject of the history of the recall process, he observed that the reference to the genuineness of a signature in the state constitution, in part, referred to a time when people signed their names with an "X."

Though, if that "X" is signed before a circulator, and the person signing is a qualified elector, the "X" would nevertheless be deemed "genuine."

Ryan decried Hauser's suggestion that circulators might be forced to check someone's driver's license before letting that someone sign a recall petition, though Hauser countered that this was only one of many options.

Over all, Hauser's lawsuit looks like a reach, one that's headed for the Arizona Supreme Court, no matter what Hegyi rules. (He promised a decision by week's end.)

I should also mention that attorneys for the Secretary of State and the County Elections department addressed the court, arguing for dismissal, but Ryan took the lead, and obviously relished the role.

Afterward, I approached Hauser, and asked why her client Ross was not in court with her. She said he couldn't make it. I then asked how Ross ended up being the plaintiff.

"[Senator Pearce] has a lot of supporters and friends," she told me. "This guy's known him for over 20 years. And he's the one who stepped forward..."

She admitted, quite convivially, that Pearce could have been the plaintiff, but that picking another qualified elector to fill the role of plaintiff was how things were usually done. She also admitted that she essentially represents Pearce in this matter, though she declined to state who exactly is paying her tab.

I rode down in the elevator with Hauser and Pearce spokesman Ed Phillips, the former weatherman and state senator. I noted that he was a moderate Republican, one who'd actually written a book on global warming (a concept that's anathema to the hard right). I wondered why he was shilling for someone as extreme as Pearce.

He told me he was working as a volunteer for Pearce at present, and that he was doing so because Pearce is a pal.

"Russell's been a friend of mine for a long time," he explained. "He's a decent human being, that's why I support him."

To which, I replied, that there may be something decent deep down in Pearce somewhere, it's just that I've yet to see any evidence of it.


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