Judge to hear arguments in Pearce recall challenge

Luige del Puerto//August 8, 2011

Judge to hear arguments in Pearce recall challenge

Luige del Puerto//August 8, 2011

In this Feb. 10, 2011 file photo, Protestors gather around Arizona State Sen. Russell Pearce, R-Mesa, Arizona's immigration bill SB1070 author, outside the Sandra Day O'Connor Federal Courthouse in Phoenix. Protestors gathered to voice opposition to Gov. Jan Brewer's plan to counter sue the federal government for failing to enforce immigration laws. Illegal immigration fell to secondary status for lawmakers ? against the wishes of some ? a year after Arizona enacted its controversial law known as SB1070. (AP Photo/Matt York, File)

A judge will hear arguments today in a lawsuit that seeks to throw out the recall election against Senate President Russell Pearce.

Attorneys Lisa Hauser, who represents the East Valley resident seeking to stop the recall, and Thomas Ryan, the lawyer for the pro-recall group Citizens for a Better Arizona, have submitted legal briefs defending their positions.

The Secretary of State’s Office, which certified the Nov. 8 recall, has also asked the court to quash Hauser’s challenge.

Both sides are expected to reiterate points they made in their legal filings, and answer questions by Maricopa County Superior Court Judge Hugh Hegyi.

Hauser is expected to argue that the recall petition failed to comply with the exact wording required by the state Constitution, omitting the key word “genuine” in the oath that circulators who gathered signatures must take.

Precise language is necessary, she argued in court filings, because a recall election should have a higher standard due to the extraordinary power it offers — the ability to remove someone from office in a special election.

Hauser said a recall a recall effort should be treated similar to a referendum, which calls for “strict compliance” of the requirements laid out in the Constitution.

But Ryan and state attorneys said Hauser’s position lacks substance.

In his counter-argument, Ryan said the state constitution does not call for a specific oath — only “an oath” that the signatures are genuine.

Citing in detail the oath that circulators made in this case, Ryan said it went beyond the constitutional requirements.

“One thing is clear, the concept of ‘strict compliance’ should never compel an absurdity,” Ryan said. “Yet, we respectfully submit that is exactly what Petitioner (Franklin) Ross’ position compels.”

Ross is the East Valley resident who is challenging the recall petition.

Ryan also said no case law says a recall must be treated in the same way as a referendum.

For one, only five percent of the electorate is needed in order for a referendum to be placed on the ballot — which effectively means putting a law on hold while the public decides its fate — while a much higher 25 percent is necessary for a recall, Ryan said.

“(A recall is) nothing more than re-voting on whether an officer is doing the job in the way the majority wants the officer to do it, while the officer continues in the duties of the office until removed and replaced. No work is thwarted with recall,” Ryan said, adding that’s why nearly a century of jurisprudence mandates that a recall be “liberally construed” in favor of recall as long as there is substantial compliance with the requirements.

Charter school executive Jerry Lewis, a Mesa Republican with deep roots to District 18 and a member of the Church of Jesus Christ of Latter-day Saints, is seen as a front-runner among those challenging Pearce.

Independent Tommy Cattey and Republican Olivia Cortes also have made initial filings to run in the recall.