Ruling halts recall effort against judge

A judge who has been derided for handing down what many considered a light sentence to a former Stanford swimmer convicted of sexual assault, and who faces a coordinated call for his removal, won an unexpected victory in a San Jose court on Friday.

A legal motion to halt the recall campaign against Santa Clara County Superior Court Judge Aaron Persky — with the goal of voting him out of office — was filed at 8:15 a.m. on Friday.

By midafternoon, according to court documents, a judge approved a request by Persky’s attorneys for a temporary restraining order that prevents activists from collecting signatures that would trigger a June recall election.

In June 2016, Persky sentenced former Stanford swimmer Brock Turner to six months in county jail after a jury convicted Turner of sexually assaulting an unconscious and drunk woman near a dumpster outside a fraternity party on the Stanford campus.

The Turner case, Persky’s opponents say, is ultimately about neither Turner nor Persky. Though Persky must be removed, they said, what ultimately matters is the failings of the U.S. judicial system when it comes to the treatment of victims of sexual assault.

This week, a Santa Clara County official had approved the campaign’s bid to begin collecting signatures, a boon to those embarking on a complex process that has been successful on only two occasions in California history.

The recall effort would not remove Persky from the bench outright.

According to the Santa Clara County Registrar of Voters, the agency that oversees the recall process, if the campaign gathers more than 50,000 verified signatureswithin 160 days, Persky’s name will be on the spring ballot. The order issued Friday does not slow that countdown.

Attorneys for Persky argued that because the judge is a state official, not a local one, the procedure for removing him ought to be overseen by the California secretary of state, not the county registrar.

His lawyers also called the petition against their client flawed, alleging that it misleads the public by implying that if the recall effort is successful, Persky would be replaced by a political appointment, which is not the case.

“This is a matter of urgency,” Persky’s attorneys wrote in Friday’s filing.

Marjorie Laird Carter, a retired judge from Orange County brought in to oversee the issue, granted the temporary restraining order.

Carter ruled that Persky’s opponents — led by Stanford law Professor Michele Dauber, the chairwoman of the campaign against the judge — must present a rebuttal by Aug. 23 to move forward.

Dauber described the motion as a “last-ditch” effort by Persky’s attorney that she did not expect would succeed. It came as a surprise, she said, sending the activists scrambling.

The ruling — which delivers a legal advantage to Persky, who has struggled to court widespread public approval — hampers the recall effort considerably.

Because the judge’s opponents must adhere to a strict timeline, every day counts, Dauber said.

Dauber, who knows the family of Turner’s female victim, said she would not give up, saying the cause mattered too much.

“We’re obviously disappointed,” Dauber told The Chronicle. “The recall is going to continue. Frankly, the recall’s going to happen, no matter how much taxpayer money Judge Persky wastes.”

Since the June 2016 verdict, the matter has taken on heightened relevance. Turner’s victim penned a 7,244-word statement that has been shared millions of times around the world.

Turner’s sentence, which Persky said was based on a recommendation from the Probation Department, went counter to a recommendation by county prosecutors who had asked for six years in prison for the former swimmer. He was forced to register as a sex offender.

His victim, a college student at the time the then-20-year-old Turner assaulted her, read the statement aloud in court to Turner’s face. It was later read on the floor of Congress.

In September 2016, Gov. Jerry Brown signed into law a measure that redefines rape in California, saying he had been inspired to do so by the Turner case.

Persky, who has served as a judge in Santa Clara County for 12 years, has previously said that the idea that judges should not become enmeshed in politics serves as rationale enough for dismissing the recall effort.

Even if Persky is voted out of office, his attorneys in the Friday filing said that the governor — and not voters — should appoint his replacement.

Persky has supporters in the legal community and elsewhere. In a previous filing, Persky defended his record, claiming he has “fought vigorously for victims” of sexual assault.

The judge, who was cleared of misconduct by several agencies, including California’s Commission on Judicial Performance, defended his tenure in the late June filing, first reported by The Chronicle.

“California law requires every judge to consider rehabilitation and probation for firsttime offenders,” Persky wrote of Turner in the Santa Clara County filing. “It’s not always popular, but it’s the law, and I took an oath to follow it without regard to public opinion.”