Where the city charter falls silent, state law must be obeyed – that is the argument of an attorney challenging a recall petition on behalf of Ward 3 Alison Petrone.
After certifying a recall request for Petrone in September, the town clerk filed a lawsuit in court for inadequate signature-gathering practices and failure of recall advocates to obey state petition law.
Constitutional law against charterAssistant Attorney Rick Knighton argued in his response Tuesday that state law protects a city’s right to regulate local issues through the charter, The Transcript reported. Petrone attorney Barrett Powers of the Norman Wohlgemuth law firm claimed that unless the charter is specific, state law must be followed.
“Oklahoma law makes it clear that the absence of conflicting and controlling local law, initiative, referendum, and recall requests is subject to state petition procedures in state statutes,” Powers wrote.
He cited Title 11 of the Oklahoma Bylaws, which states, “The process in communities that do not provide by ordinance or charter the manner of exercising initiative and referendum powers is governed by the Oklahoma Constitution and common law.”
Idavit and the warning
While city lawyers found some of the arguments put forward in Petrone’s lawsuit unconstitutional, Powers turned his arguments to the inadequacy of city law. The charter does not require a signed affidavit attached to every signature page, nor a criminal offense warning of fraudulent signatures. State law does, he argued.
In his written response to the court, he argues that these procedures are “two of the most basic legal safeguards that ensure the integrity of the petition process”.
Powers wrote that the lack of an affidavit – an affidavit that a signature circulator was questioning a person’s identity and voter status – means the town clerk was unable to verify that the signature was that of the person signing.
“City law requires the city clerk to verify the signature to ensure that they are eligible to vote and to check the validity or authenticity of the signatures,” he said in his response. “Without objective evidence in the form of legal verification, it is impossible to determine the validity.”
Powers noted that without the affidavit, anyone could search for names and addresses and sign the petition for those people.
With no affidavit attached to each signature page and the lack of a criminal offense warning, Powers argued that the Oklahoma Supreme Court consistently ruled that one of these errors renders a petition “at first sight invalid.”
The petition form
Powers also targeted the language of the charter which requires the case officer to keep “proper petition forms”. The Charter does not contain any information on the specific requirements that define proper or inappropriate form.
“With city law silent on the matter, only two conclusions can be drawn,” Powers wrote. “If the right thing has no meaning and is an idle word in city law, any form would do. On the other hand, if “correct” has any meaning, it must refer to the form required by Oklahoma law, as no other form is required under local law. “
In conclusion, Powers said his client filed her lawsuit not to undermine the public’s right of recall, but to protect those rights.
“The plaintiff’s (Petrone) protest in this lawsuit is not intended to thwart citizens’ right to petition and recall,” he wrote. “On the contrary, it is about maintaining and protecting the integrity of the process.”
Judge Lori Walkley will rule on the case, which is due to go to trial on January 26th and 27th.