Judge rejects commissioners’ appeals

ESCANABA -- A circuit judge rejected the appeals of three Delta County Commissioners who challenged the language for petitions seeking their recall during a hearing Monday.

"The recall language is crystal clear, and the reason for the recall is specifically and precisely stated. It is surprising to this court that anyone could suggest otherwise," Judge Christopher S. Ninomiya told commissioners Bob Barron, Bob Petersen, and Dave Moyle during the hearing.

Monday's hearing was unique for a number of reasons.

First, despite being held in the 47th Circuit Court courtroom at the Delta County Courthouse, the three commissioners and the sponsors of the petitions for their recall -- Claudia Bradfield, Christiana Renyolds, and Steve Benoit -- appeared before Ninomiya, who presides over the 41st Circuit Court of Dickinson, Iron and Menominee counties. Ninomiya was assigned to hear the appeal because of the commissioners role as part of the funding unit for the 47th Circuit Court, creating a conflict for Judge John Economopoulos.

Second, the hearing was held at noon, a byproduct of how quickly the two courts scheduled the hearing. According to Ninomiya, the hearing was set before he had even received the minutes for the July 17 clarity hearing, when the election commission determined the recall language submitted by the petitioners was deemed clear, factual and suitable for circulation.

"This required a fair amount of coordination between the court staffs and we had to work around two courts that were already fully-booked, and we had to find sufficient time when the courtroom was available, and ultimately, folks, that is why we are doing that over the lunch hour. That is not something that's easy to accomplish on relatively short notice," said Ninomiya.

Third, despite the hearing being set specifically to hear arguments as to why the recall petition language was either unclear or not factual, none of the three commissioners attempted to argue that the language was ambiguous or that they had not terminated former Delta County Administrator Emily DeSalvo on Feb. 7, the reason given in the petition language. Instead, they argued against the merit of the recall, something the court was not legally allowed to consider when reviewing the language.

"It didn't make sense to me to have this kind of language for a recall. We weren't doing anything that we thought was wrong. And we know it's not wrong. It's part of our job," Commissioner Barron told Ninomiya.

Both Moyle and Petersen made similar statements about the recall and DeSalvo's firing.

"In my mind we are being punished for doing our job. And if somebody disagrees that's fine, but in terms of clarity of language, I can't give you a substantive argument as to why that's wrong, it's more of a substantive argument based on the intent of the recall," said Moyle.

Bradfield, Renyolds and Benoit declined to comment on the language during the hearing.

Many of the comments about the appeal made by Ninomiya revolved around the lack of preparedness of the commissioners, none of whom filed documents with the court beyond their initial appeal filing or sought the counsel of a licensed attorney. Commissioner Petersen admitted to the court that he had not read the legal statute pertaining to recalls.

"Gentlemen, just so you understand, this isn't personal and I recognize that none of you are attorneys, but you still have some responsibility before you file a legal claim, and what you've done is essentially file a frivolous legal appeal at this point. You are all certainly free to consult with and/or retain attorneys to represent you. Instead you each made the decision to file a legal pleading and appeal while being completely unprepared to present a cogent, coherent and compelling argument in defense of your position. And frankly, if an attorney would have tried to file these appeals, they would have likely been referred to the attorney grievance commission for filing a frivolous claim before this court," said Ninomiya.

Ninomiya referred to the appeal as "puzzling," "disappointing," and told the commissioners they could have saved themselves the embarrassment of the hearing by consulting with an attorney.

"You have effectively managed to waste everyone's time, including your own, gentlemen. You have also managed to waste taxpayer money because our citizens and taxpayers are the ones who ultimately have to pay for this court to review these inadequate and legally insufficient appeals," he said.

While he did not argue with Ninomiya during the hearing, Moyle took issue with the assertion that the appeal had cost the taxpayers money.

"We didn't cost the taxpayers any money. We all paid for our own appeal, OK? If anything, we saved the taxpayers money," Moyle told the Daily Press after the meeting, adding that estimates from the county clerk's office put the total cost of a recall election near $10,000.

Moyle went on to say that the recall was politically motivated and the result of his 2022 political opponent Kelli Van Ginhoven continuing to seek his seat on the commission. He also said he was unaware of the need to file additional briefs with the court, but stressed that it was his legal right to file the appeal.

"I would do it again," he said.

While the commissioners did not succeed in having the petition language thrown out, the appeals did result in crucial deadlines being missed to put the commissioner's names on the November general election ballot. Ninomiya's decision to deny the appeals means that signatures can now be collected to put them on the May 2024 ballot.