BY LINDA BENTLEY | JUNE 4, 2014
Trenk and Monachino get reprieve from recall, for now
Trenk pulls a ‘Lois Lerner’ when asked about signing James Gandolfini’s name to his recall petition
(l-r) Adam Trenk, Reg Monachino and Charles Spitzer
CAVE CREEK – On Wednesday, May 28, Vice Mayor Adam Trenk and councilmen Reg Monachino and Charles Spitzer, all being recalled, filed an application for an order to show cause and for a preliminary injunction, asking the court to hold a hearing and temporarily enjoin Cave Creek Town Clerk Carrie Dyrek and the town of Cave Creek from issuing an order calling for a special recall election.
The hearing was held at 1 p.m. on Monday, June 2 before Superior Court Judge Douglas Gerlach.
Councilman Mike Durkin, also being recalled, chose not to be a party to the lawsuit.
The complaint alleges all of the signatures collected to recall all four councilmen were invalid because the petition sheets used by the recall proponents do not “substantially comply” with the law regarding recall petitions.
Although the petitions sheets were reviewed by Dyrek, who removed some signatures and some petition sheets for failure to comply with some of the requirements prior to sending them to the county for signature verification, plaintiffs claimed they still fall “far short” of the standard they must meet of “substantial compliance.”
Susan Clancy and Hani Saba, chair and treasurer, respectively, of the Cave Creek Caring Citizens Committee, also named as defendants, used the forms for recall provided by Dyrek, which are identical to the forms available through the Arizona Secretary of State’s office.
According to the Merriam-Webster Dictionary, substantial, as it appears to apply here, is defined as “being largely but not wholly that which is specified.”
Because injunctions are not covered by the town’s risk pool insurance, defending the lawsuit comes at an additional cost to the town.
At the onset, Attorney Tim La Sota, representing the plaintiffs, filed a motion to amend the complaint on Friday after Maricopa County issued amended certifications.
However, Gerlach stated he would not allow it because it was not timely.
La Sota argued the language on the form was insufficient.
Gerlach asked, “Why is ‘We the qualified electors’ not substantially compliant?”
Wanting to know why the specific language cited by La Sota, which seemed to apply mostly to initiatives rather than recalls, was indispensible, Gerlach asked, “What difference does it make?”
La Sota replied, “I think it’s important for the integrity of the petition.”
Maricopa County Elections Supervisor Jason Otaha was called as the first witness and was asked questions about various lines on each of the petition forms and the reason the county disqualified the signatures.
Otaha indicated a number of the signatures declared invalid were because someone other than the signer filled in the address or date information.
However, as La Sota argued, because the petition circulator signed an affidavit on the back of the petition form that states: “… at all times during my circulation of this petition sheet, and under the penalty of a class 1 misdemeanor, depose and say that subject to Section 19-115, Arizona Revised Statutes, each individual printed the individual’s own name and address and signed this sheet of the foregoing petition in my presence on the date indicated, and I believe that each signer's name and residence address or post office address are correctly stated and that each signer is a qualified elector of the state of Arizona …
La Sota argued that the entire petition sheet would then be invalid.
Otaha stated, when they are provided the petition copies for signature verification, they have no information as to how many signatures are required for a recall and they do not receive copies of the backs of the petitions.
Otaha was excused and Trenk was called to the stand. La Sota entered a photograph as an exhibit, and which Trenk identified “Franco” in the picture as the person collecting signatures.
Trenk was asked questions about two pages of petitions he believed were collected at the Cave Creek Post Office by Franco but were signed on the back by Hani Saba, treasurer of Cave Creek Caring Citizens Committee (CCCC).
When the other defendants were asked if they had any questions, Susan Clancy, representing herself as chair of CCCC, asked Trenk to look at line 7 on one of his own recall petition sheets, which La Sota entered as an exhibit, and asked him if he signed it.
La Sota argued Clancy shouldn’t be permitted to represent herself or the committee, likening it to a corporation.
Gerlach disagreed and allowed Clancy to represent herself and question Trenk.
Line 7 was the line on his own petition Trenk signed using the late actor’s name James Gandolfini, known for his role as mob boss Tony Soprano in the HBO hit series “The Sopranos.”
Reminiscent of former IRS official Lois Lerner, Trenk replied, “I plead the Fifth.”
Gerlach looked at Trenk and asked him directly if he signed it.
Under oath, Trenk admitted to Gerlach he signed Gandolfini’s name, which, according to A.R.S. § 19-115, is a class 1 misdemeanor.
Gerlach interrupted to tell those present the state of his thinking at the moment was that he was not prepared to reject any petitions on the grounds they contained insufficient language.
However, with regard to Trenk’s and Monachino’s petitions, Gerlach said he’s not permitted to look at appellate decisions differently, regardless of whether or not he agrees.
Citing Parker v. Tucson, Gerlach said the appellate court ruled that in such an instance, it is not just the signatures that would be deemed invalid but the entire petition.
Although they didn’t have a count of precisely how many more signatures were invalidated by eliminating full petition sheets, it was clear there were more than enough sheets invalidated to fall short of the 293 signatures required.
Gerlach ruled, for the reasons stated on the record, the petition sheets were in substantial compliance and the recall could proceed against Durkin and Spitzer but the recall against Trenk and Monachino could not proceed.
Clancy, who said CCCC is prepared to regroup and collect signatures again without making the mistakes that were made this last time around, was at town hall Tuesday morning to get new applications to recall Trenk and Monachino.
So, while Trenk and Monachino may have had a reprieve from this recall attempt, CCCC said they now have all the information and volunteers they need to do it again.
