Recall petitions—factual does not mean truthful
Published October 4, 2023
Written by Athens
Photography by Simply American
Five times the Election Commission has been asked to consider a recall petition.
Four times the Commission has voted to disapprove the petition (one petition was withdrawn).
All five petitions were written by the same Allendale resident attempting to recall the same school board member.
The Election Commission: Editors Not Judges
The State of Michigan puts no limit on the number of times a person can be petitioned for recall, nor do they put requirements on the validity of the reason.
On Tuesday, September 12, 2023, the Ottawa County Election Commission once again disapproved a petition from Jeanine Gasper, Allendale resident and former school board candidate. Gasper was petitioning to recall the Allendale Board of Education Vice President, Anna Hendricks.
The Election Commission—which comprises Chief Probate Judge Mark Feyen, County Clerk Justin Roebuck, and Ottawa County Treasurer Amanda Price—deemed Gasper’s fifth version of the petition unacceptable.
Gasper’s first petition lacked clarity.
Her second petition contained at least one statement that was found to be opinion rather than factual.
The third petition was determined by Price to contain a statement that wasn’t factual, whereas Roebuck voted against it because he found the language unclear. Since Feyen was the only one to consider the third petition acceptable, the vote did not pass.
Gasper submitted a fourth petition, and a hearing was scheduled for September 1, 2023. However, Gasper withdrew the request on August 31, 2023, at 4:44 p.m.
The fifth petition contained a typo. Judge Feyen explained that while petitions containing typos have been approved, this error was such that it caused the wording to be unclear.
According to the Ottawa County Recall Procedures, the Election Commission is responsible for determining if petition language is factual and of sufficient clarity. If any of the reasons stated in the petition do not meet the sufficient standards, the entire petition will be rejected.
The Election Commission adheres to the following standards when evaluating recall petitions:
(a) The Election Commission will determine whether the petition language represents fact or opinion,
(b) If the petition contains language of a purely opinion-based nature, it will not be approved.
(c) If the allegation(s) of a factual nature is insinuated, the burden of proof lies with the petitioner to bring sufficient proof of the facts.
(d) The Election Commission will accept documentation demonstrating that each reason for the recall is factual, either when the petition is filed, or at least one day prior to the date of the recall clarity/factual hearing.
The recall is not valid for circulation and cannot be circulated until a determination is made by the circuit court of whether each reason is factual and of sufficient clarity.
During the four hearings that have been held for Gasper’s petitions, public commenters have sought clarity on the word “factual” and on the petition process.
One public commenter shared what he understood to be the role of the Election Commission:
“The board that makes this determination [whether the petition is factual and clear] does not have the authority to pass judgment on the legitimacy of the reason for recall, nor do Michigan laws explicitly state the criteria for judging a petition as factual and clear.”
“This means,” the commenter continued, “that any reason whatsoever can be placed on a petition and approved for circulation, so long as the reason is clearly stated and does not contain falsehoods.”
In response to the numerous speeches of support for Hendricks, the commenter added, “We are not here to discuss the office holder. We are here to discuss language.”
Judge Feyen agreed with the commenter, but only in part.
As defined by Feyen, factual and truthful are not the same. He explained that the word “factual” is controversial, and that there are at least two opinions.
Feyen said the first opinion is the one referenced by the commenter, that the election commission has to determine if each statement on the petition is true.
“I take a more limited approach to that,” Feyen said. “My version of factual is that it has to be capable of being determined to be true, and it will be the voters who get to decide whether it is or is not true, not us.”
Feyen continued, “So, that eliminates things like name-calling and expressing opinions about people, because who knows whether those are true or factual.”
“That is my opinion,” Feyen added about his definition of factual, “and that is not universally shared.”
Feyen said that each reason stated on a recall petition has to be of “sufficient clarity to enable the officer whose recall is sought, and the electors, to identify the course of conduct that is the basis for the recall.”
“It’s conduct,” he continued, “so it’s what you do that has to be alleged, not what I think of you, or whether you’re a good person or a bad person. But it’s what you have done. Additionally, it’s got to be sufficiently clear to allow the people that are going to be voting to decide/to know what it is that is the basis for the recall.”
What Feyen’s Definition Means For Petitions
County Clerk Justin Roebuck said to Feyen, “Your definition, Judge, of factual… It’s tough to get my mind around. I agree… when we say something is factual it’s capable of being determined to be true, something that could be true. It’s not our job, though, to determine the truth because 168.952 specifically gives us our role here.”
Roebuck continued, “The statute is very clear on why we’re here… A recall is a decision of the community. So ultimately all we’re trying to do here is to say, is this language clear enough that somebody in the community could look at this and say, ‘I don’t want to sign this, or okay, I do want to sign this.’”
“And if 2,113 signatures are collected within the parameters of the time permitted,” Roebuck added, “that shows the support of the issue. Then it can go on a ballot. And then [it’s up to] the community to decide. It’s not our job to decide, and I think that is really an important factor in all.”
As the Ottawa County Recall Procedures allow, Hendricks emailed supporting documents to the Election Commission.
During her time of public comment at the second hearing, Hendricks asked the Election Commission if they had reviewed the evidence she had sent that proved her innocence of the claims made against her. The commission members responded that they had received her email. Hendricks referenced one of the statements Gasper had listed on the petition.
“It’s not even fact. It’s a false claim.” Hendricks continued, “They [those asked to sign the recall] don’t see the evidence. You are seeing the evidence. So the moment someone reads this, they’re trusting that you, Judge Feyen, as the judge, have reviewed the material and considered whether it was true or false.”
Hendricks’ husband joined in the discussion:
“Isn’t the burden of proof on the accuser? So the accuser has put forth the accusation that she [Hendricks] violated the Open Meetings Act. Well, show me how. Show me when, show me where. She’s [Hendricks] provided the information that should match that to say, ‘No I didn’t.’ So if her text thread speaks to what the accuser put forth, then that should be enough for you to make a determination.”
“What is the legal definition?” Hendricks’ husband asked Feyen. “I understand your opinion of the word factual. But what is the legal definition of factual? Is it more in line with what you said, where something is capable of being determined to be truthful or not? Or, is the legal definition of fact synonymous with truth?”
Feyen responded, “There are some cases that have been decided on this statute since it was amended, but nothing I would to point to that would clearly give us an answer to that question.“
Roebucks added, “The way that I’ve landed on that is, as Judge Feyen has said, ‘We have to do our best because we’re not a court.’ … There’s only one judge here and he’s not acting in the role of presiding over a court. We’re not taking sworn testimony. We are not entering things into evidence.”
Roebuck continued, “I’m not trying to accuse anybody of anything, right? But just because she presents something… We don’t have the authority or the resources under the statute to conduct a full investigation… So I think there is a difference between that, factual and true, because somebody can prove whether or not that’s true, if it’s factual in nature. But I don’t know that we have the power to do that under the statute.”
“We are not here to weigh what’s gone on in your community,” County Treasurer Amanda Price said. “We are here to look at this language and determine whether or not under statute it can go forward.”
Hendricks asked the Election Commission, “If those were to circulate, at that point, it’s defamation. Would that include you? Because you have seen the facts.”
Roebucks responded, “We didn’t see the facts.”
One commenter said, “There’s an implication that what was done is illegal if it’s on a petition… That’s how it’s going to be perceived by the people signing the petition. If there were some clarity of language even, that said, ‘Although not illegal…’ and then this statement. It would make more sense.”
Another commenter said, “If the things are false… It’s free speech. She…,” he paused to look back at Gasper, “might be lying. I don’t know. If it’s a lie, the answer to free speech that’s wrong, is more free speech. That’s what I’ve been told…”
“When you have actual, blatant falsehoods within the petition itself that you are voting on…,” a third commenter said. “Something that has actual lies written in it, but you guys have the proof sitting in front of you…”
Feyen responded, “I understand your point. You are arguing for the truth standard rather than the factual standard. Got it. Anybody else?”
Another commenter said, “I’ve learned a lot. Based on this, I don’t think I’ll ever be comfortable signing a recall because there’s no validity necessarily to what’s on there.”
Can The Process Be Changed?
Feyen told those in attendance that the recall process has evolved through the years. Before 2009, there had to be malfeasance, someone had to do something bad to be recalled. Then it changed to conduct and letting voters decide if what the official had done was bad enough to be recalled. And now this.
Roebuck added, “I was here with Judge Feyen… in 2009–2010 during recall hearings, prior to the new standard… [When] the legislature passed right-to-work a lot of folks got recalled. So the legislation went back and said, ‘Let’s change this recall language and make it a little tougher.’ And they did. One of the ways that they changed it was to add ‘factual.’”
“It is difficult,” Roebuck continued. “I think you have to take that up with your legislature.”
Feyen said, “Someone asked, ‘How could it get this far? Can’t we short circuit this and not do this again?’ The answer is no. A person can try [petition] again and again and again. There’s no three strikes and you’re out rule. There’s no limit to the number of tries.”
A commenter asked, “Where are the checks and balances? I would like to see how this can be addressed in the future so it wouldn’t continue to happen for Anna… Something needs to be put in place, or we’re going to see a lot of each other.”
Feyen responded, “I would say the only way to change it is to talk to your legislature, because it’s the law.”
“We’re not a truth determining body…” Feyen added. “We’re the grammar committee. We’re here to review the language, to determine if it’s sufficiently clear or if it’s not.
Before signing a recall, understand that:
• Factual does not mean truthful
• Truth is determined by the voter, not the Election Commission