Two Democrats on the Hamilton County Election Commission on Wednesday said the panel's attorney, Chris Clem, should not have filed a countersuit in response to the latest recall lawsuit filed by Mayor Ron Littlefield.
Jerry Summers, a commissioner who was the former attorney for the Election Commission, said, "I don't think we should be in that fight. I think it infringes of the appearance of us being a neutral and detached body."
James Anderson, who is also an attorney, said the Election Commission was "using public resources to take sides in a lawsuit."
He also questioned whether the filing of the countersuit was legal, saying it had not been approved by the full commission at a meeting.
Chairman Mike Walden defended the action, saying it was necessary to get a definitive answer on whether those involved in recalls need to get the number of valid signatures required under state law or the lesser number under the city charter.
He charged that the City Council has taken no action to clarify its recall provision despite an ongoing controversy about it that results in expensive litigation.
The Election Commission approved a motion in support of the countersuit, which includes a constitutional challenge to the recall law and brings in the state attorney general to the lawsuit. Mr. Summers abstained, saying, "The horse is already out of the barn." Mr. Anderson was opposed.
It was supported by Republicans Walden, Tommy Crangle and Ruth Braly. Ms. Braly said, "I have confidence in Chris. I don't think he did anything wrong."
Mr. Summers also questioned why the Littlefield suit named the Election Commission as a body and not the individual commission members. He said the latter method would have allowed commission members to have minority views put forth in the lawsuit.
He said the Littlefield suit was filed by the Chambliss, Bahner firm, which he said is the same firm that Mr. Walden uses for his Walden Security firm.
Hal North, the Chambliss, Bahner lawyer who filed the suit, said naming each commissioner "would have brought five more lawyers into it, and we don't need that."
Attorney Clem gave this timeline:
1. In 2008: Chris Clem hired to act as attorney for all election commission issues including all lawsuits.
2. On May 11, 2011, the Election Commission met to discuss the status of the case. The minutes on May 11, 2011, reflect that I passed out a legal brief being filed with the court of appeals. The commission then discussed the legal issues with me privately.
3. On May 12, 2011, I did, in fact, file a brief with the Court of Appeals raising all the constitutional issues with the approval of the election commission which had reviewed the brief the day before.
4. Aug. 17, 2011, Court of Appeals orders case dismissed.
5. On Nov. 11, 2011, the commission again met in private to discuss all the legal issues. Immediately following the private legal meeting a public meeting took place. In the public meeting the election commission voted to certify the recall petition and schedule a recall election. The chairman noted for the record (and in the minutes) that the election commission was , in part, making the decision based upon the constitutional issues (which had been briefed in May of 2011 and argued at the court of appeals and discussed in private legal sessions).
6. Dec. 16, 2011, Mayor Littlefield files a new case.
7. On Jan. 3, 2012, Chris Clem filed an answer to the new lawsuit and raised the same constitutional issue mentioned in May of 2011 and in November of 2011.
8. Jan. 6, Reporter Cliff Hightower interviews Election Chairman Mike Walden for a story whether Chris Clem had authority to raise constitutional issue “for the first time without having discussed it previously.” Walden shared with reporter the brief from May 12, 2011 and the minutes to the Nov. 11, 2011 meeting. Walden specifically told reporter all actions by Clem were approved.
9. Jan. 7, 2011, Harry Austin writes an editorial claiming “Chris Clem, the part-time attorney for the county Election Commission, gave it longer legs Thursday with his surprise decision - without the election commission's approval - to expand the legal conflict to new and novel fronts.”
Chris Clem, Hal North and Jerry Summers