Monday, March 23, 2015

Missouri: Will the recall effort against the Ferguson Mayor pass judicial scrutiny?

It looked like the recall of Ferguson Mayor James Knowles was "dead in the water" a couple of weeks ago. But times have changed. There is now a more concentrated -- or at least much better publicized -- effort to have Knowles kicked out. Signatures are starting to be collected and press reports note that petitioners need about 1800 signatures (15% of registereds) in 60 days.

The move may simply be a way to pressure Knowles into resigning (a common result in a recall). But if Knowles doesn't resign, there is an open question -- and possibly conflicting statutes -- as to whether he can be recalled for his leadership of the city. There may also be a question of how many signatures are actually needed for the recall.

The problem here is that the state law may conflict with the local law.

The first statute at play is Ferguson's basic recall law. It requires the signatures of 15% of registered voters in 60 days. It also appears to allow recalls for any reason whatsoever (i.e. political recalls). As a point of knowledge, almost every recall that you have heard of has been a political recall (think Gray Davis, Scott Walker, the Colorado state Senators, Arizona Senate President, etc.)

However, the state of Missouri has a (possibly overriding) statute. Missouri doesn't provide a recall for state officials, but it does have them for Class 3 cities (cities with a population between 5,000 and 29,999). This recall law is not a political one, but instead it is what has been called a judicial recall or malfeasance standard. What this means is that a specific charge has to be put forward in the recall petition, and (in Missouri's case) it has to allege "misconduct in office, incompetence or failure to perform duties prescribed by law."

The statute also requires the signatures of 25% of registered voters, so according to this law, more signatures would be needed.

The first question is whether Ferguson is actual a Class 3 City. The commentators I've read seem to take the Class 3 status as a given, specifically because of Ferguson's size (21,203). In this article, a University of Missouri-St.Louis Political Science professor says that it is a Class 3 City (though the description of the recall is inaccurate). However, on page 21 of this document from the Missouri Municipal League, Ferguson is listed as a Constitutional Charter city, which may be able to have its own recall law (again, I'm not clear on that or whether the city can't just be both). So it may be that the Class 3 designation is incorrect. I do not see an answer in the charter, but as we will see based on one other case, there is good reason to think that the Class 3 designation may be used by the courts.

If Class 3 is correct, from what I can tell, there isn't any case law that answers the question of how Ferguson and other cities can have recall laws that conflict with the state law (and I don't have access to Westlaw or Lexis so I will gladly acknowledge that there may be a dispositive case that easily squares the circle and would be happy if someone pointed it out). It could be that Ferguson's law is simply in violation of state law and would be thrown out by the courts.

Missouri's case law and use of the recall is quite skimpy, but it does shine some light on the subject.

There was an appellate court ruling in 1988 that stopped a recall in Gladstone because it failed to specify reasons for the recall. The court's ruling is narrow -- it does not seem to say that the recall would have been quashed because it failed to state a valid claim of "misconduct, incompetence or failure."

In the last four years, there have been three recall efforts in Missouri that are worth talking about (the other efforts all failed to hand in signatures). In 2011, the mayor of Lebanon was recalled and removed. They seem to list some reasons that may meet the standard (obstructing a meeting). There didn't seem to be any case law surrounding this recall. In March, a recall against Columbia Councilwoman Ginny Chadwick got on the ballot (over her flip-flop on marijuana). Chadwick resigned before the vote, though I haven't seen any news stories that suggest that she sued to stop the recall. Columbia is a much larger city and would not qualify as Class 3.

But the third one, the recall effort against five Ellisville councilmembers in 2012, may be the one that matters the most. Ellisville has a recall law similar to the one that Ferguson possesses. Ellisville (population 9,173) should has the same questions on whether it is a Class 3 City or Constitutional Charter city. In this case, the recall (over the building of a Wal-Mart) was tossed out by the judge because it failed to state a valid reason for the recall. If a judge follows this reasoning, then the Ferguson effort has the difficulty of meeting the malfeasance standard.

A number of commentators appear to assume that the standard for the recall will be easily met. I can't comment on Missouri law, but a look at how other states with a cause requirement for a recall act suggests that a recall based on the actions surrounding the Michael Brown shooting may not be enough to get on the ballot.

I'm not going to compile a full list, but numerous states and jurisdictions have a similar type of provision, including (for our purposes) Georgia, Minnesota,Washington and Alaska.

Over the last few years, we've seen plenty of attempts to get a recall on the ballot in these states (feel free to look through past posts for examples). Almost all have failed. Minnesota has reportedly never had a recall since it was adopted statewide in 1996. Georgia is no easier -- they are not willing to accept Open Meeting violations, a tactic that succeeds in other jurisdictions.  Alaska and Washington have had some recalls occur, but frequently there has been obvious misbehavior on the part of the official, though both have also regularly rejected recalls. There are other examples -- Here's a jurisdiction in Florida tossing a recall out for the failing to state a proper cause.

The commentators seem to think incompetence is easily shown, but that is not the case. Again, its unclear how Missouri courts would decide whether an official's actions were "incompetent" but other states have a high threshold (it almost seems like a "business judgment rule"). The only recall over the last four years that I've seen meet an incompetence threshold was Kansas' Shawnee Treasurer, who (arguably incompetently) commingled funds from the DMV and Real Estate divisions. Despite a bi-partisan call to resign, they couldn't get the signatures for that recall.

The question becomes what is the cause to recall Knowles. I haven't seen the petitions, but if it is simply focused on his actions following the Michael Brown shooting, that may be tossed out, especially since the mayor's power is very weak. In one article there is the suggestion that Knowles tried to influence a driving ticket for a friend. Strange as it sounds, that could be a much more fruitful avenue to pursue a recall.

At this point, these questions remain open-ended. And they also depend on whether Knowles will contest a recall in court. But while all the articles seem to suggest an ouster is very possible, there may be good reason to believe that a recall against the Mayor (and other officials) in Ferguson may fail in the courts.

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