No decision on recall election date case; Attorneys have until Friday 5 p.m. to file briefs

Staff Writer

It appears that the decision on whether or not there will be a recall election date set for Broken Bow School Board member Carl French hinges on the definition of a “calendar month.”

In a hearing in Custer County District Court Wed., Oct 18, 2017, District Court Judge Karin Noakes gave attorneys until end of business day Friday to file briefs in case CI 17-127 in which the court has been petitioned to set a recall election date for French.

The Broken Bow School Board did not set a recall election date for French during a school board meeting Sept 18. after a letter from French’s attorney was discussed in closed session. The letter was based on a Nebraska statue that states no recall petition can be filed against an elected official within six months prior to the incumbent filing deadline for office.

During the hearing, the court asked attorneys, and all stipulated, that the incumbent filing date is Feb. 15, 2018, and the signed petitions were filed Aug. 15, 2017.

French’s attorney David Bargen filed a Motion for Leave to Intervene Oct. 12 in the case between The State of Nebraska ex. rel. Diane Scott, Jerry Scott, Sandra L. Wright, Gary Wright, and Julie Foster, Plaintiffs vs. Broken Bow School District No 25, Defendant. The motion states that “the recall petitions in this matter were filed out of time, are invalid and of no legal effect, and thus a recall election based on them may not be called and should be enjoined.”

In court Bargen, of Rembolt Ludtke out of Lincoln, said “Those petitions weren’t filed…we shouldn’t even be here….We ask that the recall election not be held.”

Attorney for the plaintiffs William Ericksen argued the motion to intervene should not be granted as French has no direct or legal interest, and that it would take a recall election to create that interest. Addressing the Broken Bow School Board’s action of not setting a recall election date for French, Ericksen said “The board has a statutory duty to act…and failed to do so,” he said. “They cannot simply ‘not act.’”

Bargen replied that French does have an immediate interest in the case and that he may be forced into an unlawful election. “Mr. French wished to continue to serve in his position,” Bargen said and does not want to stand for election that may not be lawful.

Attorney for the Broken Bow School Board Randy Goyette said District 25 does not take any position on the motion to intervene. “The District cannot take a position,” he said and accepts the issues have been properly put forward before the court.

Judge Noakes sustained the motion and heard arguments.

Ericksen argued the challenge to the filing date of the signed petitions should have been done by the school board immediately upon receiving notice of their filing. He also argued French had an obligation to abstain from voting and that by not doing so, established that he had an objective level of interest that should negate the motion to intervene. “It appears that the intervenor has unclean hands,” Ericksen said.

Bargen argued the Nebraska Supreme Court has set precedence that recall elections should be governed by the same requirements as general elections and held to the same accords. He argued for the signed petitions to be valid “they had to be filed two or three days before…they were filed too late.” He cited case histories on time limits of recall elections and asked the court for permission to file a brief on the new arguments.

Ericksen said the dispute appears to be "the definition as to a calendar month." He further said that the Custer County Clerk acted and the information was given to the District. He alluded to an “abracadra of making the petitions disappear”

Judge Noakes took the case under advisement. “I need to make a decision as soon as possible,” she said and set a deadline of 5 p.m. Friday, Oct. 20, for filing of briefs.

Commenting after the hearing, Bargen said “Our hope is that the recall statutes are observed…the Nebraska Supreme Court has made it clear through case law of how recall statutes should be applied.” He added that French has the right to have the statues applied consistently to this case.