Election commission approves recall petition against Spencer; appeal will be sought

July 12, 2023

Election commission approves recall petition against Spencer; appeal will be sought

By Rob Alway, Editor-in-Chief

LUDINGTON — The continuous efforts of a disgruntled former Scottville city commissioner against the current mayor saw some success today as the Mason County Election Commission voted 2-1 during a clarity hearing to approve the recall petition against Marcy Spencer. The next step in the process will happen in 51st Circuit Court as Spencer has chosen to appeal the decision. 

Eric Thue, a former city commissioner who lost as a write-in candidate in the 2022 General Election, had filed a recall in June, which was denied by the Election Commission 2-1. He then came back and narrowed his petition from three points to one point. Read previous story here. 

Thue’s recall petition states, “Continuing a meeting policy began in 2021 with her as mayor, Spencer chaired meetings of the Scottville City Commission up to March 2023, violating procedures defined by the city charter that allowed for public comments before general business of the meeting. During this time, Spencer silenced the public from speaking until all business had been conducted.”

The Michigan Election Law requires the County Election Commission to review the language of a recall petition to determine it is factual and of sufficient clarity before the petition is circulated. The clarity/factual review is the starting point of each and every recall effort launched in Michigan.

Thue had been appointed to the commission in September 2021 and had taken out a petition in the summer of 2022 to run for re-election in the November 2022 General Election. However, he did not acquire the proper amount of signatures — 20 — in order to be placed on the ballot. Instead of running for a vacant two year seat, he chose to run a write-in campaign against four other candidates who were running for three four-year term seats. All Scottville commissioners are now elected at-large. The Scottville mayor is a voting commission, chosen by the commission to serve as chair. Thue only received 54 votes in the election.

Spencer, who has served on the commission for over 10 years, also lost in the election, receiving 149 votes versus 156 received by Darcy Copenhaver, 159 by Rob Alway and 162 by Kelli Pettit.

Spencer then applied to fill the vacant partial term (two year seat) and was appointed by the City Commission in December 2022. She was then appointed as mayor by the City Commission in January. She then added a second public comment segment back to the regular meeting agendas. The Scottville mayor is not an elected position. The commission appoints the mayor, a commissioner-at-large, to serve a two year term as chair.

During Spencer’s previous term as mayor — which is a position appointed by the city commission — the commission held one public comment session on the agenda, at the end of the meeting, changing a practice of holding a public comment at the beginning of the meeting and then at the end. The practice took place from 2021 until March 2023 and was endorsed by the commission at the time. Thue had been appointed commissioner a few months later and served until his term ended in November 2022, of which he took never took action to change the practice. Several times, when a potentially controversial topic was on the agenda, or when a citizen requested, public comment was placed at the beginning of the agenda as well. 

Thue’s claims are based on a misinterpretation of the city’s Charter. The Charter lists the procedures the City Commission should follow and lists them in numerical bullet points, with “hearing of citizens” as bullet point No. 4. Nowhere does the Charter state that the listing of the procedures has to be done in that particular order. Further, the Michigan Open Meetings Act only requires one public comment session during a public meeting, but does not stipulate when that is to take place.

Spencer’s attorney, Carlos Alvardo, argued that the Election Commission cannot approve a recall based on actions of an elected person during a previous term. He also pointed out that Spencer did change the policy. 

The Election Commission consists of Mason County Clerk Cheryl Kelly, Mason County Treasurer Andrew Kmetz and Mason County Probate/Chief Judge Jeff Nellis. Kelly was unable to attend the meeting and Deputy Clerk Lori Holmes was appointed by Kmetz and Nellis to serve in her place. Nellis and Kmetz voted in favor of the petition while Holmes voted against it. 

Nellis stated the scope of the clarity hearing is narrow and it is not up to the Election Commission to determine if the accusation is true or false. 

According to state law, the commission does not have a the authority to rule on whether the petition includes good reasons for recall, as only the clarity and the factual nature of the recall language is subject to the commission’s review. If any reason the recall is not factual or of sufficient clarity, the entire recall petition shall be rejected.

The commission’s ruling may be appealed, either by the officer whose recall is sought or by the sponsors of the recall petition. This would take place in 51st Circuit Court. An appeal must be filed within 10 days of the commission’s determination.

Spencer said she plans on appealing. 

If a determination is appealed, the recall petition is not valid for circulation and cannot be circulated until a determination of whether each reason is clear and factual is made by the circuit court judge or until 40 days after the date of the appeal, whichever is sooner. A petition is not valid for circulation if at any time a circuit court determines that each reason on the recall petition is not sufficiently clear and factual.

The number of signatures needed to trigger a recall election is 25 percent of the votes cast in the officer’s district for all candidates for the office of Governor in the last gubernatorial election, which would be based on the November 2022 election. In Scottville, that’s about 125 signatures.

If a recall were to take place, Spencer would have the option to run for election during a special election. Other candidates could also appear on the ballot if they filed a petition. 

While a special election is scheduled for November of this year, the deadline for filing a nominating petition with the Scottville city clerk is Monday, July 17. The deadline is based on state statute which requires time for the candidates to be filed with the county clerk and the names to be placed on the ballot. This means that a recall election would not take place until the next scheduled state election, which is March 2024. Spencer’s term ends in November 2024 and she has indicated previously that she likely will not seek re-election when her current terms ends.

Thue has taken out a petition to seek nomination for the upcoming special election in November.

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