The Education Action Network

Taking Back America By Taking Back Our Schools

2-27-12

Hi Bill,

My intent is not to get into a protracted back-and-forth; I don’t believe that serves either of us. But some questions have been asked and those asking should know what has transpired to date. While perhaps the title was hyperbolic you are really lamenting not being asked your opinion about a matter of law on which the court has already decided – the validity of the call for the election.

Your opinion is, and your staff has argued, that the law was not properly followed to call the election. However the lower court ruled that the call DID meet the legal requirement. I wasn’t able to attend the appeal but those who did said this was addressed during questioning and the appeals court accepted that the election was called, so unless the appeals court does an about-face on that issue, which I suppose is possible, the election was called as a matter of law.

The lower court then went on to create the implied power to cancel the election. What is so egregious about this ruling, if it stands, Bill is that it allows the government to call an election – by whatever statutory process – then the government/individual/agency vested with executing the election now has the implied power to cancel the election AFTER it is able to know and/or evaluate the candidates! Or if the legal requirements to conduct the election are not properly executed then election will be deemed never to have been called in the first place??

Dr. Covey’s called an election – a lawful authority of his office under statute. He then cancelled the election exercising an authority he doesn’t have under statute - after having the opportunity to evaluate the candidates who had opened campaigns to that point. Once he exercised that unlawful action it was only then his staff stopped the process of executing all the requisite steps to conduct the election.

The public record clearly shows two threads from the cty sup of schools office. First, this is what we need to do to call the election; next, this is what we now need to do to conduct the election - based on communication with your staff. And the public record clearly shows that his staff was taking those steps until Dr. Covey took his unlawful action of cancelling the election only then did his staff stop executing the necessary steps to conduct the election.

So, suppose there is an election this year for, oh say - county attorney and whatever person/agency is vested with conducting that election never bothers to execute the legal requirements – give notice to the DOJ or contract with county elections or fails to execute some other part of the process. Does that mean the 2012 call/requirement for an election to fill the position of county attorney never existed? No, it means the person/agency was derelict in their duties to conduct the election and interfered with the election process.

Nonetheless, I remain

Respectfully yours,

 

Diane


 

 

Diane Douglas

Info@DianeDouglas.com

ElectDianeDouglas@cox.net

623-428-9756

 

 

Paid for by: ElectDianeDouglas

 

 

-----Original Message-----

From: Bill Montgomery [mailto:bill@montgomery2012.com]

Sent: Saturday, February 25, 2012 7:21 AM

To: Diane Douglas

Cc: a href="mailto:peter.pingerelli@att.net">peter.pingerelli@att.net>; WES HARRIS

Subject: Re: The Law

Hi Diane,

Here's the problem - and it's going to require a statutory fix. I do not believe that the law was followed to properly call an election. That is important because, as the conservative position should be, I do not believe there is a legitimate basis for reading into the law an implied power to cancel an election where one has been called.

Because the end result - that the current law permits appointments - would come about even if my position was upheld, there is nothing for me to appeal. I strongly disagree with the reasoning used to date.

If anyone had bothered to talk to me about this, before accusing me of stabbing people in the back, I could have made this clear. My oath is to the law and serving the people, not protecting power or position.

Take care, Bill

Sent from my iPhone

On Feb 24, 2012, at 10:28 PM, "Diane Douglas" a href="mailto:ElectDianeDouglas@cox.net">ElectDianeDouglas@cox.net> wrote:

> Bill,

>

> With all due respect to you, because I do; Judge Hannah ruled that an

> election had been called but apparently wrote new law by giving the Cty Sup

> Of Schools the authority to cancel an election for some undefined period

> of time. Dr. Pingerelli appealed that decision. While I was unable

> to attend the oral arguments, I understand that the Appeals Court agreed

> that the special election was called.

>

> Sincerely,

> Diane

>

> Diane Douglas

> Info@DianeDouglas.com

> ElectDianeDouglas@cox.net

> 623-428-9756

>

>

> Paid for by: ElectDianeDouglas

>

>

> -----Original Message-----

> From: Bill Montgomery [mailto:bill@montgomery2012.com]

> Sent: Thursday, February 23, 2012 5:38 PM

> To: ElectDianeDouglas@cox.net

> Cc: WES HARRIS

> Subject: The Law

>

> Diane, I looked at this first hand. The true conservative approach to this

> is to require an election to be properly called. It was not. There is

> nothing to appeal and, based on the law, I will not.

>

> Sent from my iPhone=

>

>

 

I agree with your frustration and the you are dead on correct about the mischief created. To be clear: there was no consultation with my office or any guidance provided on the "election" process. I was not consulted until everything blew up. I do not believe in creating implied powers where they are not truly necessary to carry out an express power set forth in statute and you do not have to have the implied power to cancel an election to be able to carry out the express power to  call an election.

 


I am making it clear that no argument, either at the trial or appellate court level, may be made for implied powers without my personal approval.

 


I still believe that we need a statutory fix to address the election procedure (with clear guides on how/when an election could ever be cancelled - maybe in the instance where there is only 1 qualified candidate).

 


We're on the same side of this issue.


Sent from my iPhone (Bill Montgomery)

 

For school board elections ARS 15-424 already addresses the cancellation of school board elections. The authority to cancel a school board election is vested with the Cty Brd of Supervisors when there is only one candidate. In this case, Dr. Pingerelli is the only candidate who legally qualified for the ballot. The Cty Brd of Sups could have legally cancelled the election and deemed Dr. Pingerelli to have been elected if Dr.Covey had not interfered with the election process.

 


As always,


Diane

 

Diane Douglas

Info@DianeDouglas.com

ElectDianeDouglas@cox.net

623-428-9756

 

We're going round and round on a point I agree with you on, Diane. A County School Superintendent does not have the express or implied authority to cancel a duly called election. However - and I checked our appellate brief - it has always been my position that there was never a properly called election in the first place. That is the essence of what happened. Everything else afterwards is arguing about whether it could/should/was cancelled.

 


I think the statute should be cleared up and put the center of action with the school board.

 


Thanks, Bill

Sent from my iPhone

 

Bill,

 

Yes, we agree there is no implied power tocancel the election. And I agree that your position has been that there was no properlycalled election in the first place. However – we know that attorneygenerals’ and county attorneys’ opinions only “count”until a court (or the Legislature) weighs in on the matter. In this case the lowercourt ruled and the appellate court accepted that the actions taken by Dr.Covey were sufficient to call an election.

 

So we know –

The Cty Sup of Schools has the legalauthority to call an election

The lower court ruled and appellate courtaffirmed an election was called.

Statute directly confers the power and speaksto the circumstances to legally cancel a school board election – and itisn’t by the Cty Sup of Schools.

The lower court judge created a newimplied power for that position – to cancel an election.

 

Call me an idealist, but in my opinion –your office should be protecting the rights of “We the People” notthe unlawful actions of another branch of government that has acted to squashthe rights of “We the People.”

 

So I guess we’ve really come fullcircle on our little debate. And with that I leave you with a last rhetoricalquestion. You have repeatedly stated and I accept the fact that you may honestlybelieve an election was not called. However, how do you reconcile the fact thatthe same attorney, who argued your position, of an unlawful call, in court, isthe same attorney who told Dr. Covey how to legally call the election? I havevery definite opinions based on all I’ve read in the public record but Ithink that at this point it best I comment no further.

 

I very much appreciate you taking the timeto respond. It has been an interesting debate!

 

Best wishes to you.

 


Regards,


Diane

 

Diane Douglas

Info@DianeDouglas.com

ElectDianeDouglas@cox.net

623-428-9756

 

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