By Jeremy Carroll and Jeremy Adragna
C & G Staff Writers

ROYAL OAK — State Rep. Marie Donigan, D-Royal Oak, officially appealed a decision by the Oakland County Election Commission to allow a recall drive against her to move forward, saying the language in the petition is not clear enough and the law that sets up the recall process is unconstitutional.

Donigan filed the appeal with the Oakland County Circuit Court on Nov. 21. The recall is being sought by Royal Oak resident Bret Moon, who heads the group Taxpayers to Recall State Representative Donigan.

Donigan, who represents the 26th district, which covers both Royal Oak and Madison Heights, is being targeted for a recall for voting for an income tax increase and a new sales tax on certain services called for in House Bills 5194 and 5198, according to the petition sheet.

The language was approved by the Oakland County Election Commission on Nov. 16 by a 2-to-1 vote, with Clerk Ruth Johnson and Treasurer Patrick Dohany voting for the language and Judge Eugene Moore dissenting.

“Judge Moore is the only person on the panel who’s versed at all in the law,” said Donigan. “And he’s the only person (who is) non-partisan on that three-person panel. He was very, very clear about why the language is not clear.”

Donigan said she was persuaded by Moore’s ruling that her appeal would be valid.

“It seemed like a good basis for an appeal to me, not just to appeal for appeal’s sake,” said Donigan. “He clearly had read the language and thought about it before he went in there and declared it to be unclear in no uncertain terms.”

An attorney representing Donigan, Mary Ellen Gurewitz, said Moore was correct when he said during the hearing that the language wasn’t sufficiently clear.

“It refers to a new tax on services, but it doesn’t say what services would be taxed,” Gurewitz said.

Identical language to that submitted by Moon in the case was rejected by courts in Macomb, Wayne, Muskegon and Ogemaw counties. The same language was passed in Kent County.

In the complaint, Gurewitz argues that the law that sets up the recall process is unconstitutional because it violates the separation of powers by having members of both the judicial and executive branch on the commission, which she says makes an executive decision.

Gurewitz said the issue of the constitutionality of the law was decided by the Court of Appeals previously, but that was 25-30 years ago.

“There have been a number of decisions about the separation of powers since then and we think it’s an issue that needs to be re-examined,” Gurewitz said.

Matthew Davis, an attorney who represented Moon at the election commission hearing, said an appeal would be futile, and the language was very clear.

“All that is necessary, according to a 2001 court ruling, is that you have to state a specific action, a specific event with a specific outcome,” Davis said. “We were actually more clear than the what the statute calls for.”

Moon couldn’t be reached, but Leon Drolet, who heads Michigan Recalls, a political action committee that provides assistance for residents interested in recalling officials over the budget votes, said they will once again provide legal assistance to fight the appeal.

Drolet said the appeal was a way to delay the process, which can be lengthy already. The recall sponsor has 180 days from the moment the commission passes the language to collect signatures, but all of those collected must by submitted within a 90-day window. The signatures then must be certified, and the recall question would be placed on the next election ballot.

“It would be in May if the signatures are collected quickly,” Drolet said.

Donigan would be up for re-election in November of 2008, but if the right amount of signatures is collected but misses the May deadline, the recall question would be posed to voters in August, Drolet said.

You can reach Staff Writer Jeremy Carroll at jcarroll@candgnews.com or at (586) 279-1110.

You can reach Staff Writer Jeremy Adragna at jadragna@candgnews.com or at (586) 279-1101.