Wednesday, September 10, 2014

Missouri: Call for a recall of Ferguson city council/mayor

This may be a much tougher road than Charles D. Ellison sets out in The Root. Ferguson does have a recall law which seems to set no limits on the use of the recall (a political recall law). Ellison doesn't make that claim -- he cites Missouri law which would seem to trump the local provision. Missouri is a Judicial Recall/Malfeasance Standard state -- recall petitions must show a cause to get on the ballot. It's not totally clear that this view of state law trumps (I've seen some Missouri recall petitions that did not make a malfeasance claim), but there certainly is a good chance he is correct and Missouri law would rule the day.

Ellison argues that this wouldn't be a problem:
Missouri state law is actually gift-wrapped to give everyone in Ferguson a very important and lasting structural solution to their problem, since the criteria for a recall are fairly straightforward and even conveniently nebulous, if anyone has to play semantics with the enraged Missouri rednecks who would likely go ballistic if this route were taken: “misconduct in office, incompetence and failure to perform duties prescribed by law.” 
If Ferguson’s current government doesn’t fit the criteria above for a recall, I’m not sure what does.
Based on what we've seen of recalls in judicial recall/malfeasance standard jurisdictions, I would say Ellison is being too optimistic about the state courts' willingness to accept this criteria. In the past three years, there has been only one recall that took place in Missouri. There have been other cases where recall were tossed for not stating a claim). In other states with a malfeasance standard, judges may take a hard line on what qualifies as malfeasance (though violation of open meeting laws  qualifies). It is not clear from the article what Ellison thinks should be the specific action cited. Incompetence is probably a high hurdle (here's one time it was used successful) and judges aren't exactly looking to cite officials for misconduct and failure to perform.

It could be that the Missouri Election Commissions and courts would accept a petition against the Ferguson officials. But based on other states understanding of the standard, it is going to be a real challenge for any petitioners to pass the first barrier to success.

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