If I'm Reading this Right, I Can't Support the Recall

Yesterday I took a third look at the judge's May 12 order in Hess v. Haines Borough and Goodman.

On page 14, after the judge declares

(2) "The position of Assembly member for Seat "E" on the Haines Borough Assembly...to be vacant. "

The judge then orders:

(3) "The Assembly to call another election for that office pursuant to HBC 2.68.545."

I don't know about you, but I have been fixedly focused on the concept of a vacancy on the Assembly and what the code and charter say about remedying that. I agree with the recall proponents that both the Charter and the Code call for a vacancy to be filled by appointment within 30 days (Charter Section 2.04; HBC 2.10.250).

And I do not buy the argument that one had to appoint a person more "like" Goodman. Who knows what Goodman would have been "like" over a 3-year term? I myself was often "unlike" what some people expected when I sat on the Assembly. Assembly members, no matter what agenda they may have promoted during a campaign, tend to modify their views when called upon, as they are, to represent the entire valley.

BUT ... the judge ordered an election based not on HBC 2.10.250, but "pursuant to HBC 2.68.545", which says:

"If, following an investigation, the assembly concludes ...(b) the person canvassed as elected is not qualified as required by law...the assembly shall ...order another election."

This turns the recall on its head! In effect, everyone did the right thing (though possibly for the wrong reason) by moving for an election, except Assembly member Vick! What a mess.

Did the judge err in citing HBC 2.68.545? If so, don't you think the Borough Attorney would have immediately filed for reconsideration so as to correct the error and refocus the judge on the Borough's vacancy stipulations? As a matter of fact, the judge scrutinized HBC 2.68.545 so carefully that an error in the original citation of this code provision made in the decision issued May 11 was corrected by issuing the "Corrected Decision on Appeal" the next day, May 12.

If we assume the judge's order is valid, then it looks like the motion to hold an election to fill Seat E was exactly what the judge ordered.

I'm no attorney, but by the third time I read the judge's order, I came to the conclusion that the motion to hold an election was proper. It all depends on whether you invoke HBC 2.68.545, as did the judge, or whether you believe that HBC 2.10.250 rules the day. I'm going with the judge.

Next question: if the judge's order is valid, why then did the Borough Attorney declare the recall petitions lawful? That's a whole other problem and I for one hope that we can set it aside by voting "no" on the recall. If I am reading the Judge's May 12, 2011, Corrected Decision on Appeal correctly, that's what I am going to do: vote "no" on recall.