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Posted on Thu, Aug 1, 2013 : 12:58 p.m.

Washtenaw County clerk says factuality portion of Michigan's recall law is unconstitutional

By Danielle Arndt

Previous coverage:

On the day that Washtenaw County Clerk Larry Kestenbaum is scheduled to determine the clarity and factuality of recall language filed against Ann Arbor school board trustees, he released a statement saying he will refuse to issue any ruling on the factuality of the recall language.

Thumbnail image for Larry_Kestenbaum.jpg

Kestenbaum is one of three members of the County Elections Commission who will be reviewing the recall language filed by the group Ann Arbor Public Schools Parents for Change, trying to remove six school board members from office.

The clarity/factuality hearing takes place at 1 p.m. Thursday at the Washtenaw County Board of Commissioners meeting room, 220 N. Main St. in Ann Arbor. It is open to the public.

Kestenbaum said in an email Thursday he has come to the conclusion that the new requirement of factuality in recall language is "unconstitutional on its face."

A new law passed in December 2012 makes it so the petitioner has the burden of factuality when filing recall language.

Kestenbaum said: "The submission of reasons for recall is a procedural, and not a substantive matter. And the targeted official may not impose delay by contesting whether those reasons for recall are 'good enough'." He says that judgement is up to the people and is based in the petitioner's ability to collect the prerequisite number of signatures to force a recall election.

Prior to the 2012 law, the elections commission only had to make a determination on the clarity of the petition language.

"They ruled whether it was clear enough to allow the officer in question to rebut the claims," said county Director of Elections Ed Golembiewski earlier this week.

Read Kestenbaum's compete statement about Act 417, the 2012 recall law, below:

The Michigan constitution sets up the basic process for recalls of public officials. Article II, Section 8, provides as follows:

Laws shall be enacted to provide for the recall of all elective officers except judges of courts of record upon petition of electors equal in number to 25 percent of the number of persons voting in the last preceding election for the office of governor in the electoral district of the officer sought to be recalled. The sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question.

For emphasis, I'll repeat that final sentence, in three parts

  • The sufficiency of any statement of reasons or grounds,
  • procedurally required,
  • shall be a political rather than a judicial question.

In plain language, the people have the power to remove a politician from office. The submission of reasons for recall is a procedural, and not a substantive matter. And the targeted official may not impose delay by contesting whether those reasons for recall are "good enough".

When a citizen is aggrieved with a state or local elected official, he or she submits a text which outlines the reasons the official should be removed. The county election commission reviews this text for clarity. If the text meets this minimal standard, the petitioner may proceed to collect signatures to force a recall election.

However, late last year, the Legislature changed this process by enacting Act 417 of 2012.

Under the new law, the county election commission is also charged with determining whether the proposed reasons for recall are "factual".

Little guidance is offered for what constitutes factuality, and how the commission is supposed to decide this.

Presumably, the commission would have to take a position on the truth or falsity of the charges offered.

Moreover, Act 417 provides that, if the commission determines the reasons for recall to be "factual," the targeted officeholder may contest this finding in court, and prohibits the collection of signatures while the case is pending.

This new scheme flies in the face of the Constitution.

The sufficiency of reasons for recall is a political question. It is specifically not a judicial question.

If the election commission and the courts can determine the truth or falsity of reasons for recall, then the power to judge these questions has been removed from the people.

I conclude, therefore, that the new requirement of "factuality" in recall language is unconstitutional on its face.

I took an oath to uphold the state constitution. I cannot in good conscience follow this provision of Act 417, which directly contradicts that constitution.

Accordingly, as a member of the Washtenaw County Election Commission, I will continue to review proposed recall language only for clarity.

I respecfully decline to review any recall language for "factuality."

I will oppose any motion which purports to rule whether or not a proposed recall text is "factual".

The Election Commission is not a court. It should not hold evidentiary hearings or take testimony under oath on the issue of whether proposed recall language is "factual". I will oppose any attempt to do so.

The Washtenaw County Election Commission will meet at 1:00 pm today, Thursday, August 1, at the Board of Commissioners Room, 220 N. Main Street, Ann Arbor.

The main agenda item is the proposed recall of members of the Ann Arbor school board.

This is the first recall petition since the enactment of Act 417, and our first opportunity to respond to this new legal environment.

Lawrence Kestenbaum
Washtenaw County Clerk & Register of Deeds will be covering the recall hearing, which starts at 1 p.m. Check back later to see the results of the hearing.

Danielle Arndt covers K-12 education for Follow her on Twitter @DanielleArndt or email her at


Ann Arbor Parents For Students

Mon, Aug 5, 2013 : 11:31 p.m.

Isn't failure to balance the budget factual?

Bob Johnson

Sat, Aug 3, 2013 : 3:40 p.m.

Kestenbaum is correct. A recall is a political question. Asking one elected official- the Clerk, in this case - to decide whether a political statement from another elected official or their opponent is true or not, is a road we do not want to go down.

Larry Kestenbaum

Sat, Aug 3, 2013 : 12:06 p.m.

Incidentally, there's a Court of Appeals case that deals with this issue quite directly: Meyers v. Patchkowski, 216 MichApp 513 (1996). This case involved the proposed recall of school board members in Rogers City. The motion that petitioners complained of was later rescinded by the school board, and expunged from the minutes, and the school board members argued that it never happened. The county election commission found the recall language to be clear, and the board members took it to court. The circuit court agreed that the reasons were clear -- but then threw out the recall because the reasons were untrue. The Court of Appeals wrote as follows: "The circuit court exceeded its authority in invalidating the petitions. On ce the court decided that the recall petitions were clear, it should have concluded its review. The court did not have authority to review the statements in the petitions for truth or falsity. Such a determination is a political question for the voters, not the courts." This is exactly my point: truth or falsity is for the PEOPLE to decide.


Fri, Aug 2, 2013 : 3:53 p.m.

This is what happens when people in power start making laws and "do not", "can not", or "will not" understand what the State and Federal Constitution says in the first place. The first step is for them to read the Constitution themselves, something that many of our public officials do not even what taught to our children or in public schools.

Patrick Maurer

Fri, Aug 2, 2013 : 3 p.m.

I agree with Mr. Kestenbaum's decision. The politicians are trying to put obsticles in the way of people trying to recall a representative. If enough signatures are obtained for the issue to be voted on then it should be placed before the voters to decide. That is how our democracy is supposed to work.


Fri, Aug 2, 2013 : 1:22 p.m.

I agree with Kestenbaum. This law is just another of the Lansing Republican bunch stuffing imperial laws down our throats then justifying their actions with a they know everything and we don't attitude. This continues to be sickening.


Fri, Aug 2, 2013 : 3:48 a.m.

I should like to post a number of things (hopefully the journalists at will not delete this post). 1. Larry K is a Very Thoughtful and Righteous dude, a Member of the State Bar of Michigan, yins all would enjoy having a cup of coffee with him. 2. The well-meaning Tea Party/Homeschoolers that filed the request did Not have the right language in their proposition. They can correct it by consulting with a lawyer. 3. This Is a Constitutional Question. Perhaps a lawyer can be found to challenge Larry K's. conclusion. I would Love to see that; my personal opinion is that Larry K is correct. "Let the Wild Rumpus begin!"


Fri, Aug 2, 2013 : 3:20 a.m.

I'm not a Kestenbaum fan and think he has overstepped his boundaries on several occasions. I agree with him on this occasion however. Good for him for not making a mockery of democracy.

Charley Sullivan

Fri, Aug 2, 2013 : 2:09 a.m.

Friend Larry: Let me suggest another way of reading this, which might be implied by requiring that reasons be "factual." I would say this as saying the reasons cannot be counterfactual. For instance, if a politician were put up for recall for having committed adultery, but he or she was not married; or it it said they missed a meeting that they were in fact at, that should not be allowed in the language. Demonstrably false, not dependent on "opinion", counterfactual elements should not be allowed. A case in point, for instance, would be much of the language that has been attached to anti-gay recall efforts in Ypsilanti. Some of it was opinion, that should stay. But parts of such language that were demonstrably false should not be allowed.


Fri, Aug 2, 2013 : 1:35 p.m.

That would be my interpretation, as well, however, I am neither a lawyer, nor a clerk.


Thu, Aug 1, 2013 : 9:45 p.m.

Can they pass a law that requires statements from candidates to be factual? If we had to have an election committee decide if a candidate was telling the truth about what they have done or will do before we could decide to vote for them we'd probably never get around to an election. I see where the legislature would want to protect a candidate against blatantly false accusations in order to affect a recall. But bringing that to the point of law is not easy and perhaps impossible. The law needs a different perspective.

Jack Gladney

Thu, Aug 1, 2013 : 8:22 p.m.

I guess I always thought that the Office of the Clerk was a part of the Executive function and not the Judiciary interpretive function of Government. I learned something new today. Sounds like someone bypassed the AG's Office in the opinion department. I look forward to following the coming lawsuit.

Jack Gladney

Fri, Aug 2, 2013 : 11:37 a.m.

Bob, I'm not sure what good that would do. We already have a clerk, who I am assume took an oath to execute the duties of the office and to uphold the Constitution. Maybe Larry is just following the example of the Executive branch in Washington and simply ignoring governmental infrastructure. His interpretation of the law may well be correct, but I'm fairly certain that it is not for him to issue legal opinions. I just think it will be interesting to see where this goes.

Basic Bob

Thu, Aug 1, 2013 : 10:14 p.m.

feel free to run for clerk.


Thu, Aug 1, 2013 : 7:44 p.m.

Tend to agree with Mick52. Get a legal opinion first. Maybe the AG. Clerk Kestenbaum is intelligent and well respected in Ann Arbor so I guess we wait for the next technolegal drama to unfold before this can go anywhere. Thurston rebels without a cause. While likely a clever procedural maneuver, it would seem more responsible to challenge the new law directly rather than risk losing the entire arguement simply by violating one's own elected duty. That's the law, Kesterbaum disobeyed, so out he goes for dereliction of his office duty. The law then remains and fails to get an "official" challenge?

shadow wilson

Thu, Aug 1, 2013 : 8:15 p.m.

did you read the post from Kesterbaum?......if not you should


Thu, Aug 1, 2013 : 8:01 p.m.

Obviously I am a very slow composer. Question answered before able to post. So, I gusess we now wait for Da Judge..

Larry Kestenbaum

Thu, Aug 1, 2013 : 7:16 p.m.

I see some questions about my authority to disregard a specific statute as invalid. First of all, anything an elected official does or doesn't do is subject to legal scrutiny and potential challenge. If my objection to following some law were not well founded, I expect that a judge would set me right rather quickly. Second, the courts exist to resolve disputes; if a law is unconstitutional on its face, it's not always necessary to resort to litigation. For example, until recently, Michigan law required clergy to be "a minister of the Gospel" to officiate at weddings. In other words, non-Christian clergy were barred from marrying people. We county clerks all ignored that requirement, without needing a judge to tell us so. (Recently, the law was finally amended to remove the discriminatory language.)


Thu, Aug 1, 2013 : 10:01 p.m.

fyi, I was being sarcastic and facetious in my comment above.


Thu, Aug 1, 2013 : 7:09 p.m.

A lawsuit in the making, nice job Mr. Kestenbaum.

Maria Huffman

Thu, Aug 1, 2013 : 11:34 p.m.

To DonBee, It's usually better to get clarity on something that is written ambiguously, for everyone's sake. ----Mrs. Huffman


Thu, Aug 1, 2013 : 9:57 p.m.

Ms. Huffman - I don't have an opinion on good or bad, only that if the ruling had been required, then this could have been the test case for the position that Mr. Kestenbaum took. Mr. Kestenbaum is his own person and decides what he wants to do. Putting out a public opinion piece like this is like throwing down the gauntlet in the time of knights, it was a challenge, and challenges today are not met with steel but with lawyers. Not may public officials have the guts to potentially start a test case.

Maria Huffman

Thu, Aug 1, 2013 : 7:13 p.m.

I think Larry Kestenbaum makes a good argument.


Thu, Aug 1, 2013 : 6:50 p.m.

Thank you for clarity and reason LK!


Thu, Aug 1, 2013 : 6:48 p.m.

Here's the sad fact we've been living under the rule of the benevolent repubs........ "Facts don't matter,",,, when the very intention is to impose barriers, roadblocks and burdens that thwarts the will of the people or the law.


Thu, Aug 1, 2013 : 6:28 p.m.

Now might be the time to file for a writ of mandamus


Thu, Aug 1, 2013 : 6:25 p.m.

Recall kestenbaum.


Sat, Aug 3, 2013 : 5:57 a.m.

Really? For discussing what part of the law is in his opinion, against the Michigan Constitution? He is the County Clerk and that's his job. No recall necessary or desired.

Colorado Sun

Thu, Aug 1, 2013 : 5:56 p.m.

Completely agree with Larry Kestenbaum. The State Constitution deems the recall grounds a non-reviewable "political question" and the Michigan Legislature cannot override this. Without such protections, you are going to have to hold hearings on fact issues to be decided by the Elections Commission.


Thu, Aug 1, 2013 : 5:42 p.m.

I think Mr. Kestenbaum's first duty should have been to seek an opinion on this from the state Attorney General's office. Also this sentence from the state constitution: "Laws shall be enacted to provide for the recall of all elective officers except judges of courts of record upon petition of electors equal in number to 25 percent of the number of persons voting in the last preceding election for the office of governor in the electoral district of the officer sought to be recalled." seems to indicate that the constitution gives the legislature leeway to make law on how recalls can be conducted. So why wouldn't the new law be protected by that language? I kind of like the idea that reasons for recall are factual and not made up.


Thu, Aug 1, 2013 : 6:14 p.m.

The sentence you quote from the constitution is immediately followed by another sentence, as part of the same paragraph, which you conveniently chose to omit: "The sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question." This sentence means exactly what Kestenbaum says it means: that reasons for recall are a matter of politics rather than a matter of substance/"factuality." The law passed last year directly contradicts this language in the state constitution ... and is therefore unconstitutional. Kudos to Kestenbaum for taking this position.

Nicholas Urfe

Thu, Aug 1, 2013 : 5:55 p.m.

"I kind of like the idea that reasons for recall are factual and not made up." Recalls are fundamentally subjective. This law is just a power grab from the people, attempting to undermine the recall process, and tie up any recall in the courts over verbal quibbling. Just as they tried to use the font size to undermine the rights of voters.


Thu, Aug 1, 2013 : 5:41 p.m.

I shall now issue a statement listing the laws that I consider to be unconstitutional and that I will, therefore, no longer follow. Seriously, why does he get to decide which laws he will and will not follow? Why can't the rest of us do that, too?


Fri, Aug 2, 2013 : 1:16 p.m.

@Are you serious? BINGO!

Are you serious?

Thu, Aug 1, 2013 : 7:29 p.m.

"I shall now issue a statement listing the laws that I consider to be unconstitutional and that I will, therefore, no longer follow." Go right ahead. Just be prepared to suffer the consequences if you lose. That is exactly what LK is doing.


Thu, Aug 1, 2013 : 6:58 p.m.

Until a judge rules that the law is unconstitutional, the law is still the law, and the clerk should follow the law. If he wants to act like a judge, he should run for that office. Some clerk saying the law is unconstitutional doesn't mean diddly squat.

Nicholas Urfe

Thu, Aug 1, 2013 : 6:27 p.m.

"When did we decide that county clerks can decide on the constitutionality of laws?" When we required them to take an oath to uphold the Constitution.


Thu, Aug 1, 2013 : 5:57 p.m.

When did we decide that county clerks can decide on the constitutionality of laws? I think I missed that lesson when I was back in school.

Nicholas Urfe

Thu, Aug 1, 2013 : 5:51 p.m.

Because you are not the County Clerk.

Dog Guy

Thu, Aug 1, 2013 : 5:32 p.m.

County Clerk Kestenbaum has it right. Otherwise King George would still have US in court substantiating factuality in the Declaration.

Nicholas Urfe

Thu, Aug 1, 2013 : 5:32 p.m.

I noticed the ambiguity over these new requirements. In the past we have seen recall petitions denied based on absurd interpretations of the text. The "factual" stuff is for the voters to decide. Putting that determination in anyone else's hands denies the voters of their rightful role in making that determination. Glad to see Kestenbaum leading on this.

Basic Bob

Thu, Aug 1, 2013 : 10:05 p.m.

we've also seen absurd petitions circulated without a speck of truth, but they were clear enough for all the straight ticket voters to cast a ballot.

Usual Suspect

Thu, Aug 1, 2013 : 5:20 p.m.

Interesting. I have respect for LK and his work with the County. However, when Obama does these things, I always express disagreement, because it seems to me that It's the court's role to decide on Constitutionality. But then, by doing this, perhaps he will cause the question to taken to the court, where it will be decided. The thing is that with Obama, he is almost never questioned on it and he gets away with it because we no longer have an objective media. I think the only exception is his bogus NLRB "recess appointments" episode that is moving along, though at a snail's pace.


Fri, Aug 2, 2013 : 10:38 a.m.

The recess appointments issue related to whether the Senate was "in session" when so many members were away for the holidays that it couldn't conduct business. Neither what constitutes "in session" nor whether 41 Senators can prevent a vote on a president's appointments is mentioned in the Constitution.


Fri, Aug 2, 2013 : 3:17 a.m.

Usual Suspect. As usual you ignore the fact this NLRB appointment during recess has been practiced and accepted by REPUBLICAN Presidents without challenge in the past. You are misinformed and selective in your evidence. I take issue with the NLRB filing suit against a private company like Boeing when they wanted to move a union labor locked plant to a non union and more productive state so they could increase production and profits. That my tax dollars are being spent to protect union (read that as being "special interest", is appalling to me and an affront to free enterprise and democracy.


Thu, Aug 1, 2013 : 5:45 p.m.

"... it seems to me that It's the court's role to decide on Constitutionality" Ultimately, yes, it is the Court's role. But the Court cannot step into a situation and rule something constitutional or not - the case needs to be brought to them. When an executive refuses to carry out a law he deems unconstitutional, he is taking the first, highly appropriate, step in the process which will bring the matter to the Court for its final adjudication.

Usual Suspect

Thu, Aug 1, 2013 : 5:33 p.m.

Thanks, seldon. If it were actually an unrelated rant, your thoughts might some sense. The issue is an elected official deciding not to follow the rule of law because he thinks it's unconstitutional. LK is doing that here, and Obama has done it himself several times. The tie between them was in the relating of my reaction to each of them. I'm not sure why you're going on a rant about somebody's comments on this article.

Usual Suspect

Thu, Aug 1, 2013 : 5:29 p.m.

Additionally..... the language on recall petitions is often opinion, not something that can be measured against some benchmark of accuracy. For example, in this case, "Failure to demonstrate thoughtful consideration of constituent priorities." It's pretty hard to rule on whether an opinion is "factual." That's pretty much what the voters would be expressing in the recall election, should it come that.


Thu, Aug 1, 2013 : 5:27 p.m.

Kestenbaum isn't Obama, so I'm not sure why you're going on an unrelated rant here.

David Cahill

Thu, Aug 1, 2013 : 5:19 p.m.

Kestenbaum's argument seems to be a sound one. I wonder what the other Election Commissioners - and the County's lawyers - will make of it.