June 21, 2014 | Vol. 95, No. 146

Consolidation removed from August ballot

By RYAN JARVI

Ryan Jarvi/Daily Globe
JUDGE CHARLES Goodman, left, Roy Henley, of Thrun Law Firm, and Richard Adams, Gogebic County prosecutor, convene at the bench during a hearing regarding the consolidation proposition on the Aug. 5 primary election ballot Friday.

rjarvi@yourdailyglobe.com

Bessemer - After a four-hour Gogebic County Court hearing Friday on the Aug. 5 consolidation question between Bessemer and Wakefield-Marenisco school districts, a consent judgment was approved to have it removed from the ballot.

Judge Charles Goodman, of Houghton, approved the preliminary injunctive order after hearing testimony from both sides.

"This is a unique and, for lack of a more educational way to say it, odd situation," Goodman said. "Courts have always encouraged parties to resolve their disputes in a general sense. Now this dispute is a little bit different. Certain individuals who are interested in the dispute are not here."

Roy Henley, of Thrun Law Firm, representing Bessemer schools, said the state's election laws have mandated formalities of circulated petitions.

"The formality cannot be overlooked," Henley said. "If those formalities are not complied with, you have reasons for, right then, calling the election invalid."

Henley made the case that violating those formalities wasn't the biggest concern for Bessemer school filing for the injunction.

"The ballot issue which has been circulated doesn't contain a voted question for operating millage," he said. "That's 18 mills non-homestead millage and it's a voted millage."

The 18-mill tax makes up about 13 percent of Bessemer's budget and 43 percent of Wakefield-Marenisco's, which Henley said is "critical to have for the new district.

"The old districts will lose the ability to levy at the point of consolidation and the new district will not have the power to do so until it's voted," he said.

The districts would have to function on what they have in their respective funds for about five months without the millage, and four months without any state aid, Henley said.

"The combined fund equity for both of these districts is no more than $25,000," Henley said. "And that's what its got for five months of operation, assuming that the millage passes."

Were consolidation to pass, the districts would have had to made cuts to a number of programs, including extracurriculars, transportation and staff.

Gogebic County Prosecutor Richard Adams represented county clerk Gerry Pelissero.

Adams said he and the defendant first looked at the case as a matter of substantial compliance, which could mean people signed the petitions regardless of who circulated them because they truly favored consolidation.

"Originally, our thinking was that unless those aren't Wakefield elector signatures on there, is this getting too technical and are we really supposed to go behind the facial validity of a petition handed in to the clerk?" Adams said.

He agreed that there is mandatory language on how a petition must be circulated.

An investigation into the circulation process conducted by Michigan State Police resulted in charges against Bessemer Board of Education member Bill McDonald on three misdemeanors for violating circulation laws.

Adams said he could not assume the accuracy of the police reports because of his involvement with that case.

However, William and Katherine Phillips testified on Friday to signing a total of 12 petitions that were found by police to be illegally circulated.

William Phillips, McDonald's ex son-in-law, testified to signing eight petitions without circulating them.

"(McDonald) just said he needed somebody from Wakefield to verify the signatures," Phillips said, adding that he didn't read or circulate any of the petitions.

Katherine Phillips signed five petitions as circulator, but only personally circulated one of them. She also said McDonald asked her to sign the other petitions as circulator.

"(Pelissero) has no way of taking any of those signatures at face value because he was relying on oath of the person circulating the petitions," Adams said. "That person is required to sign under oath that they were the people that went out and collected the signatures on their petition. That's more than a technicality."

Adams said the case was no longer an issue of substantial compliance.

"That's a lot bigger issue and it goes beyond an issue of substantial compliance or not," he said. "It goes right to the heart of why we have people make oaths and why our law requires that people circulating these petitions will swear they collected the signatures contained on their petition. It's the first line of a defense against fraud.

"Our thinking has evolved to the point that if we had the power, after certifying the ballot question ... of revoking that certification, my client made the decision after reviewing the police report that he would," Adams said.

Because both parties essentially were caught in a problem caused by a third party, there was no real controversy. Therefore, both sides agreed to a stipulated consent judgment approved by the judge.

"First of all, we have the petition circulated by an elector of another district," Henley said. "Second of all, you have the fraudulent certification issue. When you take a look at those two together you've absolutely invalidated the election."

Dave Radovich, Bessemer's district administrator, said he hopes now that the question is removed, it will help with some of the wedges that have divided the two communities.

"I think now we're going to look for public input," he said. "What direction do they want us to go? Do they want us to look at consolidation? Do they want us to pursue pairing and sharing more, or a combination of both? But I think, hopefully now, the process will be controlled by the two school boards and it will be done in a very methodical, thoughtful and safe way for our districts and our kids. I think above all we protected our kids today."