Ezzell v. Lack (In re Ezzell)
| Decision Date | 26 January 2021 |
| Docket Number | No. 119,220,119,220 |
| Citation | 480 P.3d 906 |
| Parties | IN RE: PETITION TO RECALL WARD THREE CITY COMMISSIONER Ben EZZELL Submitted to the City of Enid on August 4, 2020, Ben Ezzell, Plaintiff/Appellant, v. Alissa Lack, City Clerk, City of Enid, Oklahoma, and George Pankonin, Mayor, City of Enid, Oklahoma ; Defendants/Appellees, and Keith Siragusa, Heather White, Ty Atkinson, Brian Henry, & Jennifer Henry, Intervenors. |
| Court | Oklahoma Supreme Court |
David M. Collins, Enid Oklahoma, for Appellant.
Tony G. Puckett, Oklahoma City, Oklahoma, for Appellees.
Stephen Jones, Gabriel Dunbar, William Jewell, Enid, Oklahoma, for Intervenors.
¶1 This cause concerns the review of the trial court's denial of a protest which challenges the sufficiency of a petition to recall an elected City of Enid City Commissioner, and the applicability of state statutes to the City's election recall process. In Clapsaddle v. Blevins, 1998 OK 5, ¶14, 66 P.3d 352, we held that city recall measures are governed by state statutory provisions for initiative and referendum. However, only the publication notice provisions of 11 O.S. 2011 § 15-1041 were at issue in Clapsaddle, supra. The City of Enid City Charter, Part D, Art. II, § 6 directs the application of state general election laws to city elections, unless the state laws conflict with the charter provisions.2 Today, we are asked to determine the extent to which other state statutory provisions are applicable to this cause.
¶2 We hold that because there is no conflict between the City Charter recall process, and the additional state requirements of 34 O.S. 2011 § 3 and 34 O.S. Supp. 2015 § 6, the state statutes governed, but were not properly followed. The recall petition is insufficient on its face pursuant to Clapsaddle v. Blevins, 1998 OK 5, 66 P.3d 352, and its predecessors.
¶3 On February 12, 2013, voters of the City of Enid, Oklahoma (COE), elected the plaintiff/appellant, Ben Ezzell (Ezzell/Commissioner), to represent Ward Three of COE. Ezzell ran unopposed for the same seat four years later and won. He is term-limited, and his term expires on May 3, 2021. Two hundred and four alleged Ward Three, COE voters signed a recall petition which organizers filed with the COE Clerk's office on August 4, 2020, in an attempt to recall Ezzell from his elected position3 . The voters were upset that Ezzell supported a mask mandate for the COE, and that he wanted to follow the Center for Disease Control Guidelines.
¶4 The signature collectors signed a signature page stating that "the signatures were known to me, at their home at the time of signing, verified through the okvoterportal.okelections.us, or stated that they were a registered voter in Enid Ward 3." A notary then notarized the collector's signature. On August 4, 2020, the City Clerk sent a letter to the signature collectors notifying them that the petition was insufficient. The problem was that the City Clerk had read in the newspaper that some of the signatures were not, in fact, collected at the voters' homes, thus rendering the notarized affirmations of the signature collectors inaccurate. The circulators confirmed that what the Clerk read in the newspaper was true.
¶5 The City Clerk suggested two alternative options to correct the problem: 1) have the signatories check photo identification cards, and resubmit the petition with a statement that the photo identification cards were checked; or 2) the clerk could determine whether there were sufficient Ward Three voters' signatures included, and those signatures can be verified by checking photo identification of those who signed.
¶6 The City Attorney also informed the circulators that the petition needed to be amended, and that the circulators needed to identify which voters they knew personally, versus which voters signed in their home. In a supplemental signature page notarized on August 5, 2020, the signature collectors identified whether the voter was known to them personally, or whether they collected the voter's signature at the voter's home. The supplemental information was added to the original petition. There was no indication that any photo identifications had been checked. After conferring with the City Attorney, the City Clerk on August 7, 2020, deemed the recall petition sufficient to proceed to election. The City Clerk noted that, although the best method for ascertaining identity is to check an identification card with a photo which also includes a signature of the person, the COE Charter did not expressly require a check.
¶7 The Clerk also noted that signature collectors' affirmation statements were unclear because they did not contain written affirmations which indicate that the statements in the petition were actually true. Nevertheless, they were notarized, and thus assumed to be truthful, and implicitly clear that the circulators believed the statements contained in the petition provided reasons for the recall. The Enid News & Eagle published notice of the recall petition on August 11, 2020.
¶8 On August 17, 2020, the Commissioner filed an Objection and Protest to recall petition in the District Court of Garfield County. According to Ezzell, the problems with these particular recall signature collections were that they did not include a voter warning as required by state statute 34 O.S. 2011 § 3.4 Furthermore, the circulators did not check photo identifications when collecting signatures, verifying the name, mailing address, and date of birth associated with his or her Oklahoma voter registration record required by 34 O.S. Supp. 2015 § 6.5
¶9 On August 17, 2020, the trial court, pursuant to 11 O.S. 2011 § 15-104,6 set Ezzell's challenges for a hearing on September 8, 2020, which was later continued to October 6, 2020. On September 4, 2020, the COE Mayor and City Clerk filed an answer to Ezzell's Objection to the recall petition. They admit that the deadlines for filing recall petitions are governed by state statutes, but argue that neither our prior decisions, nor any other state statutes are applicable to this cause, and that the recall petition was sufficient. They insist that the recall petition is sufficient because it contained the requisite number of signature of registered voters from Ward Three, and that the City Clerk properly performed her role in the process without acting arbitrarily, fraudulently, or capriciously.
¶10 On September 11, 2020, a group of citizens known as the Enid Freedom Fighters petitioned the trial court to intervene in this cause in support of the sufficiency of the recall petition. On November 19, 2020, the trial court allowed intervention. It also determined that the recall petition was sufficient and permitted the election which is set for February 9, 2021, to proceed.
¶11 The trial court's ruling was due, in part, to its restrictive application of our decision in Clapsaddle, supra, which held that city recall measures are governed by state statutory provisions for initiative and referendum. The trial court also stated that "without more specific direction from the Oklahoma Supreme Court," it would not apply Clappsaddle, supra, beyond the confines of the applicability of 11 O.S. 2011 § 15-104,7 to the City's recall election process, even though "Ezzell makes a compelling argument to do so."
¶12 On November 25, 2020, the Commissioner appealed. We retained the cause on December 1, 2020. After the briefing cycle was complete, the cause was assigned on January 11, 2021, to this chamber.
I.
¶13 The COE argues that: 1) the City Clerk properly determined the recall petition sufficient pursuant to the requirements of the City Charter; and 2) the only state statutory proceeding applicable to this cause, which was also properly followed, is 11 O.S. 2011 § 15-104.8 Ezzell argues that pursuant to Clapsaddle v. Blevins, supra, 34 O.S. 2011 § 3 and 34 O.S. Supp. 2015 § 69 also supplant the City Charter recall provisions; and because these statutes were not also followed, the petition is insufficient, thus abrogating the scheduled recall election.
¶14 The COE adopted a charter, and it is operating under a charter form of government.10 Although this was not raised by the parties,11 the COE City Charter expressly recognizes the applicability of all of the general provisions of the state election statutes to all COE election proceedings. It provides in Part D, Article II, Sections 6 and 7 that:
The COE City Charter also expressly addresses a recall election process for a city official in Part A, Article VII, Section 7.12 The most relevant provisions to this cause are: the procedure for recall; the signature verification process; and the City Clerk's approval of the petition's sufficiency.
¶15 The Charter's procedure for the recall is as follows:
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