No hearing for recall decision; judge to rule on brief filings instead

Ben Ezzell

A Blaine County judge is set to rule on Ben Ezzell’s protest to his recall petition with submitted briefs in lieu of a scheduled, in-person hearing at Garfield County Court House.

Ezzell and Enid attorney Stephen Jones both said Tuesday that Associate District Judge Allison Lafferty decided to allow all legal parties in the case to submit any supplemental briefs by Oct. 20. Both said they would be filing briefs before Monday.

Lafferty then will rule if the petition is sufficient and if the recall can be held in February as scheduled.

Lafferty was set to hear Ezzell’s objection to the petition’s sufficiency last week, but that long-awaited hearing was canceled due to an outbreak of COVID-19 at the court clerk’s office. Half of its office staff tested positive with COVID-19, according to County Commission Chairman James Simunek, and the office was closed Monday to Wednesday.

Ezzell, representing himself, is challenging City Clerk Alissa Lack’s Aug. 7 decision determining 87 signatures sufficient for a recall to be held. His motion named her and Mayor George Pankonin as defendants as representatives of the city of Enid. Oklahoma City attorney Tony Puckett represents them, but was unable to be reached for comment Wednesday.

However, Puckett on Friday filed both a brief in support of the recall petition’s sufficiency and an index of exhibits.

No docket items for the case have been filed on the Oklahoma State Courts Network website since Friday.

Lafferty also is expected to rule on a motion to intervene as defendants filed last month by Jones on behalf of the petition group Enid Freedom Fighters.

Jones said he thought he was the one who initially suggested via email Lafferty rule “on papers,” to which everyone else agreed, largely because of scheduling conflicts from multiple parties reported after the hearing was canceled last week. Such hearings are not unusual in federal court, he said.

“I’m sure people would like to have a hearing. Those tend to be more interesting. But this is a judge from out of county, and it takes her roughly an hour and a half to get here. … And it’s all complicated by COVID,” Jones said.

The decision to rule on the briefs without a hearing is the latest wrinkle in the case, which has seen one turn after another in the weeks leading up to Lafferty’s planned decision.

Freedom Fighters representatives filed their recall petition on Aug. 4, the day of a city commission meeting. During that meeting, Enid City Attorney Carol Lahman notified them Lack, the city clerk, had ruled the petition insufficient. Lahman and circulators determined that same night she and Lack had misread the word “or” instead of “and” in the circulator verification, regarding signatures being collected in the home or knowing the petitioners personally to determine genuineness.

Freedom Fighters had spent a weekend in Ezzell’s Ward 3 collecting 209 signatures, 69 of which were needed to be sufficient (30% of the last contested ward election). Sixty-nine of those collected Lack later deemed insufficient.

After a circulator wrote a clarification to the petition, Lahman formally apologized to the group in a letter. That letter appears on the index list, as does an affidavit from Lahman supporting the petition’s sufficiency. Lack’s ruling on Aug. 7 was followed by a 10-day public notice published in the Enid News & Eagle.

Ezzell filed his objection to the petition’s sufficiency on Aug. 17, the day before city commissioners were to rule on setting an election date, and a hearing was set for Sept. 8. Two days later, Aug. 19, would be the final date for Garfield County Election Board to receive city-approved notice of a Nov. 3 ballot item.

With all citing Ezzell’s right for due process, city commissioners unanimously voted — Ezzell included — on Aug. 18 to table the vote to choose either Nov. 3 or Feb. 9, 2021, as the date of the recall election, thus nullifying the former date and leaving February as the only option.

The day of the initial hearing, Lafferty, who had notified all parties the month prior, filed a continuance order moving the hearing to Oct. 6.

Jones was retained to represent the Freedom Fighters, who collected $5,000 in donations to cover legal fees, according to its Facebook group. He filed the motion to intervene on Sept. 11.

Then, in response to the first vote, Jones requested in a letter to Lahman that commissioners set a date and argued the motion to table was itself a violation of Enid City Charter. The letter also stated if an election was not set no later than February, the group would file a third-party petition against commissioners to ask the court to order a November election. That letter also was sent to all commissioners and released publicly by the end of the day Sept. 14.

In a second vote a day later, on Sept. 15, city commissioners set the recall election for Feb. 9, Ezzell this time as the only nay vote. That resolution becomes operative Thursday, 30 days after passage.

Candidate filing is in December. Whoever receives the highest number of votes would win and serve the three months remaining of Ezzell's term. That same day is the election to choose Ezzell’s successor on the commission. His term expires in May, when that winner will take office.

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