Legal battle over recall gets nasty
Advocates move against official who is to decide whether petition drive against judge can continue
SAN JOSE » Worried about getting a fair hearing on whether the petition drive to recall Judge Aaron Persky can resume in time for the June election, advocates of his ouster moved Friday to disqualify a visiting judge from deciding the pivotal issue.
The move is the latest skirmish in a legal battle pitting the judge against the Santa Clara County Registar of Voters and recall supporters led by Stanford law professor Michele Dauber. Persky went to Santa Clara County Superior Court to stop the recall campaign’s petition drive to put the issue on the spring ballot.
The recall battle lines were drawn last summer when proponents decided to take to the polls to remove Persky from office for giving a Stanford athlete what many considered a light sentence for sexual assault. Recall opponents note that Persky’s sentence for Turner was lawful and followed a probation department recommendation. And they argue that a recall would threaten judicial independence. By this week, 90 law professors and deans had signed a letter opposing the campaign.
Last week, retired Orange County Judge Marjorie Laird Carter dealt the campaign a blow by granting Per-
sky’s request to temporarily block the campaign from gathering the 58,634 signatures necessary by Jan. 16 to get the issue on the spring ballot. The judge suspended the petition drive, which had begun the day before, for 12 days, until after an Aug. 23 hearing, prompting Dauber move to get her off the case.
In California and 18 other states, anyone who believes that a specific judge would not be fair has the right to object to one judge per case, without explaining why. In a statement Friday, Dauber questioned Laird Carter’s judgment.
‘’Unfortunately, the fact that Judge Carter would issue a prior restraint of protected First Amendment speech without any finding of a compelling government interest, and indeed without even letting us discuss the question, demonstrates that she does not have a sufficient appreciation for or does not fully understand the important First Amendment issues at stake in this case,” Dauber said.
Laird Carter took on the case after Persky’s fellow judges declined Friday to hear the matter since they are colleagues. She is a member of the California Judges Association, which endorsed Persky. Both she and Persky are constrained by strict state rules from commenting on pending matters or criticizing opponents in an election.
If Laird Carter recuses herself, it is unclear who would be assigned to the matter and how soon. Persky’s lawyers declined to comment Friday on whether Laird Carter should allow the campaign to push her off the case. One way to block it is to argue it’s too late since California law requires the affidavit be “timely,” essentially before a trial begins. But the timing is a fuzzy concept that often turns on whether the judge has made any decisions on the merits of the case.
In legal documents, Persky argues that because he is a state officer, California’s secretary of state, not the county registrar, has jurisdiction over the recall election and should decide whether the campaign’s signature-gathering effort can proceed.
Lawyers for the recall and the county registrar of voters disputed that contention in an opposition brief filed Wednesday.
Persky also has asked the judge to permanently block the petition drive, forcing proponents to start over — by filing their petitions with the state rather than the county — which would delay the recall until the November election and significantly increase the county’s administrative costs. It also could be much more timeconsuming to go through the state if a new law signed by Gov. Brown is upheld by the courts. One of Persky’s lawyers, Elizabeth Pipkin, contended that those procedures, which include giving voters 30 days to withdraw their signatures, would benefit Persky.
Persky also contends that if he winds up losing his seat, the governor should fill the vacancy — not voters. As it stands now, the question of who would replace the judge would appear on the same ballot as the recall. The recall campaign claims that the issue already has been settled by case law — in favor of voters. Whoever is elected would serve out the rest of Persky’s six-year term, which ends in 2022.
Recall proponents also contend they have a fundamental right protected by the First Amendment to circulate petitions. But Persky’s lawyers argued in new legal briefs Friday that requiring the campaign to comply with the state constitution does not violate their rights. They also contend that Secretary of State Alex Padilla’s opinion — that the recall should be overseen by the county — is irrelevant.