An initial hearing in the recall appeal came before the Arizona Supreme Court recently.
On Nov. 8, attorneys for Unite Payson, Mayor Tom Morrissey, the town and the county took part in a conference call conducted by the Staff Attorney’s Office duty attorney.
The court ordered that Unite Payson’s lawyers submit their opening brief by 4 p.m., Nov. 18
The other attorneys will then file their responses by 4 p.m., Nov. 26, according to online court records.
Unite Payson’s lawyers could argue the group correctly gathered enough signatures to force a recall election of Morrissey.
Judge Randall Warner recently ruled in Payson that the number of signatures needed to force the recall was not 770 — as Payson’s town clerk had calculated — but 1,225, which is more than the number of signatures Unite Payson had submitted.
Following his decision, Unite Payson filed an appeal both with the Arizona Supreme Court and the Arizona Court of Appeals Division II.
The court of appeals deferred taking action on the case since Unite Payson sent it to the upper court as well.
“No party indicated they would be seeking to transfer the matter to division two,” according to online records.
“Appellants advice that the sole issue to be raised in the appeal is the number of signatures needed for the recall. No cross-appeal is anticipated,” according to online records.
The case centers on interpreting state law and the Arizona Constitution in the requirements to recall a municipal official. The Constitution states, in part, that organizers must collect signatures equivalent to 25 percent of the number of votes cast at the last preceding general election for that office.
The last time voters elected a Payson mayor in a November general election was 17 years ago. Since then, every Payson mayor has been elected in an August primary. The only time a Payson mayor would be elected in November, based on current election laws, would be in the event of a runoff.
Morrissey’s attorney argued before Warner that the 2018 primary election should have been used to calculate the number of signatures needed, which was the last preceding mayoral election.
“The August 2018 primary election is not a perfect fit with the term “last preceding general election ...” But it is a better fit than the 2002 election,” Warner wrote. “It is more consistent with the Constitution’s purpose of measuring the number of signatures needed to call a recall by the present size of the electorate.”
The courts could decide which benchmark to use — the 2002 general election or the 2018 primary election — which could help other cities and towns across the state in the event of a recall.
Stan Garner, who heads up Unite Payson, said he is glad the Supreme Court will hear the case because “time is of the essence here.”
While the court hashes out the recall, Warner ordered the county and the town to continue to prepare for the March 10 recall election of Morrissey in the event the courts side with Unite Payson.
Garner said Warner brought up several points in his ruling that the courts need to help iron out, including what constitutes the last preceding general election.
“How do you really interpret that statute?” he said. “If you read the black letter of the law, it is pretty simple.”
The Roundup reached out Morrissey and his lawyer for comment. Morrissey’s lawyer only confirmed the filing deadlines.
Asked who is paying their legal fees, Garner said he and Unite Payson’s treasurer Kim Chittick are “on the hook” for the bills.
He said they used money donated to Unite Payson primarily on rent and advertising.
Groups still collecting signatures to recall
rest of councilGarner said they continue to collect signatures for the recall of Morrissey and Payson council members Suzy Tubbs-Avakian, Jim Ferris and Janell Sterner.
He expects Unite Payson will file the signature sheets for the three councilors by the Dec. 10 deadline, but would not say how many signatures they have gathered to date.
They continue to collect signatures for Morrissey in the event the they need to turn in additional signatures.
Dave Golembewski, who is collecting signatures to force the recall of council members Chris Higgins, Barbara Underwood and Steve Smith, said his goal is 2,000 signatures for each.
Unite Payson and Golembewski need to collect 1,638 signatures for each council member.
State statute allows signature gatherers 120 days from the date they pull recall papers to collect the required signatures.
“I have about 1,500 on Chris Higgins and Barbara Underwood and hope to turn in 2,000, so three-quarters of (the) way there and have about 1,800 on Steve Smith and hope to get 200 or so more on Steve,” Golembewski said in an email.
Since the “recall push on the mayor and the court hearing,” Golembewski said he has been overwhelmed with signers, especially for Smith and Underwood.
“... I have no present or former mayors or councilors helping with my recall and no PAC (political action committee), just lots (of) concerned voters.”