Petition to recall councilmember over deer cull vote rejected

Thursday, December 17, 2015 - 11:05am

A petition to recall Councilmember Kirk Westphal over his vote in support of an upcoming deer cull in the city was rejected Thursday.

In a hearing, the Washtenaw County Elections Commission determined in a 2-1 vote that the petition had insufficient language and did not meet the commission’s determination of factuality.

Filed by the Save the Deer movement, which has vocally opposed the cull in past months, the petition raised concerns about potential public safety risks of the cull and argued that it was unsupported by scientific evidence.

Sharpshooters will kill 100 deer across parks in Ward 1 and Ward 2 during the cull in an effort to control the city’s growing deer population. City Council approved the program 8-1 in August.

Westphal, as well as several individuals advocating on his behalf, spoke at the hearing. No members of Save the Deer were present.

Probate court judge Darlene O'Brien, chair of the commission, said the group’s task was to determine whether each reason for the recall stated in the petition was factual and of sufficient clarity to justify a recall under the state Constitution, not rule on the issue itself.

O’Brien said the question of whether to let a petition proceed often hinged on the definition of the term "factual," which is not explicitly outlined in the state law. Given that lack of clarity, she said the commission usually decides among themselves what the standard is.

“The petition must be stated in language that makes an assertion as fact rather than opinion, and second we at least know the reality to the extent that it is presented,” she said. “If this is insufficient, then the entire petition is rejected.”

Westphal told the commission he had several problems with the language and factual accuracy of the petition.

“My primary struggle is with the allowance of statements that are posed as assertions rather than discounted with an ‘I believe’ and so on,” he said.

He added that the inability to distinguish fact from opinion is particularly troubling in issues of public safety, pointing specifically to the use of the phrase unjustified danger in the petition to describe the cull.

“The word unjustified is certainly opinion and gives the petition signer no clarity over what is justified or unjustified,” he said. “This language definitely gives me pause.”

Westphal also cited as inaccurate portions of the petition that stated that the culls would be carried out at night and that the rifles used would be "high-powered."

According to an announcement from the city Tuesday, the cull will be carried out from 4 P.M. to 7 A.M. daily starting in January.

Speaking on Westphal’s behalf, Christopher Dick, professor of ecology and evolutionary biology, said the petition’s claims were not supported by scientific research. He cited in particular his experience as director of the Edwin S. George Reserve, a reservation maintained by the University for preservation and research opportunities that has had a yearly deer cull since 1942.

“(On the reserve) in 1928 four does and two bucks, white tailed deer, were introduced for the purposes of hunting in a fenced area,” Dick said. “In six years that population increased to 160 deer. It soon became evident that we wouldn’t be able to do any kind of scientific studies on the reserve due to the grazing of such a large degree.”

Dick said researchers at the University have accumulated 70 years of experience with deer management programs and in their experience culling is the most efficient, effective and humane method.

However, Washtenaw County Clerk Lawrence Kestenbaum, a member of the commission and the sole vote in favor of approving the petition, said he thought it was factual to the extent required by state law.

Kestenbaum said he interpreted the requirement of factuality to mean a petition is plainly intended and true, a bar he said the petition met.

“I am unwilling to endorse or deny the factuality of these reasons,” Kestenbaum said. “In 2012, when the legislature added the requirement that we also consider whether the reasons for recall are factual, a word that’s not defined in the law, I and others suggested that factual means plainly intended and true.”

O’Brien and County Treasurer Catherine McClary, the third member of the commission, contested that interpretation.

“I believe that under the new law petitions need to be both of sufficient clarity and to be truthful, and I find that this petition is neither,” McClary said.