PERSKY LOSES BID TO BLOCK RECALL
Court ruling soundly rejects argument that state should have overseen petition process; appeal to California Supreme Court still possible
SAN JOSE >> An appellate court Monday ruled that the recall election against the judge in the Brock Turner sexual assault case may proceed in June.
Judge Aaron Persky’s argument, rejected by a lower court last summer, was that judges like him are state officers, so California’s secretary of state, not the Santa Clara County registrar, should have overseen the petition drive to qualify the measure for the ballot.
Persky’s lawyers had implored the 6th District Court of Appeal last week to block the recall measure from appearing on the Santa Clara County ballot on June 5.
But the three-bank panel of justices from the 6th District Court of Appeal appeared skeptical of those arguments, a position born out Monday in the ruling.
“We, therefore, find no constitutional basis on which to delay the processing of the current recall petition in order to compel the Secretary to take over the initial recall procedure from Shannon Bushey, the designated elections official for Santa Clara County voters,” the court ruled Monday.
If Persky had prevailed, recall proponents would have been forced to refile their petitions with the state — a move that would have delayed the recall until at least November and significantly increased election costs by more than $5 million.
The judge can appeal Monday’s ruling to the state Supreme Court but may face an uphill battle, given how soundly the appellate panel rejected his bid in its 21-page ruling.
Even if Persky does appeal, the Supreme Court does not have to take up the case.
One of Persky’s lawyers, Elizabeth Pipkin, said the team is evaluating the ruling.
“Judges, as state officers, deserve uniform protection in the recall process,” she said in an email. “This protection benefits the civil rights of all by ensuring that individual jurisdictions cannot change the rules in a manner that leaves judges open to unfair recall campaigns that pressure them to make decisions based on popularity, as opposed to relying on the law and the facts.”
Retired Judge LaDoris Cordell, who opposes Persky’s ouster, said recall opponents will continue to concentrate on the political campaign.
“We remain focused on growing the number of voters who oppose the recall,” Cordell said.
The Recall Persky campaign hailed the court’s decision to reject what supporters called a frivolous lawsuit.
“His decision to appeal the original court decision is part of a long line of terrible decisions by Judge Persky, who seems to be putting his own personal, financial, and political interests ahead of that of the voters and taxpayers,” said recall leader and Stanford law professor Michele Dauber in a news release. “We are thankful that the Sixth District Court of Appeals sided with the voters and rejected Judge Persky’s appeal.”
In a key development that also does not bode well for Persky, the recall was endorsed recently by the South Bay Labor Council, which represents more than 100,000 workers, and the California Nurses Association.
The recall battle lines were drawn in June 2016 when proponents decided to take to the polls to remove Persky from office for giving former Stanford athlete Brock Turner what many considered a light sentence — six months, of which he served three — for sexually assaulting an intoxicated, unconscious woman outside a campus frat party. Under California law, Turner must also register for life as a sex offender.
Recall opponents note that Persky’s sentence for Turner was lawful and followed a probation department recommendation. They also argue the recall would threaten judicial independence by encouraging any group that didn’t like a verdict to challenge the judge who made the decision.
Persky is constrained by strict state rules from criticizing opponents in an election. However, in a statement that appears on the recall petition approved by county officials, the Superior Court judge — without referring specifically to Turner’s sentencing — said California law requires him to consider rehabilitation and probation for firsttime offenders.
In Persky’s original legal challenge, he also contended that if he wound up losing his seat, the governor should fill the vacancy — not voters. But a lower court judge ruled in late August that the question of Persky’s replacement would appear on the same ballot as the recall, and Persky did not raise that issue on appeal.
Whoever is elected would serve out the rest of Persky’s six-year term, which ends in 2022.
San Jose lawyer Angela Storey and Assistant District Attorney Cindy Hendrickson are running to replace Persky.