SAN JOSE — In a victory for the campaign to oust Judge Aaron Persky, a retired San Francisco judge Monday ruled that proponents could immediately resume collecting signatures on petitions aimed at putting the recall on the June ballot.
Retired San Francisco Judge Kay Tsenin is expected to make a final ruling Thursday in favor of the recall campaign on the underlying legal issues.
But after recall advocates Monday burst into applause at the end of the hearing in Santa Clara County Superior Court, Tsenin made it clear that just because she defied the so-called “code of the robe” by tentatively ruling against Persky doesn’t mean she supports the recall.
“It’s not about that, ladies and gentlemen,” she said. “It’s about the law.”
Seventeen days ago, another judge issued a temporary restraining order to halt the recall campaign’s signature-gathering effort at Persky’s request. The restraining order came the day after the county registrar had approved the recall petitions.
Jubilant recall supporters can now resume efforts to collect the 58,634 signatures they need on petitions to put the measure on the spring ballot.
Persky’s lawyers at the McManis Faulkner law firm said Monday they still hope to prevail, if not in Santa Clara County Superior Court, then at the appellate level.
“We’re hopeful she’ll change her mind” before Thursday, said Persky’s lawyer Elizabeth Pipkin, who will submit final pleadings on Wednesday. “But if she doesn’t, we will appeal.”
Tsenin’s tentative ruling came as a relief to recall leader Michele Dauber, a Stanford law professor who contended that the lawsuit filed by Persky was frivolous and intended solely to delay the petition drive.
“This is what democracy looks like,” Dauber said.
Persky became a recall target after giving a six-month sentence last summer to former Stanford athlete Brock Turner, who sexually assaulted an unconscious, intoxicated woman outside a campus fraternity 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. And they argue that a recall would threaten judicial independence. Ninety law professors and deans have signed a letter opposing the campaign.
The two main issues before Tsenin were whether Persky’s effort to block the proposed recall from the June election was legally sound and if the state Attorney General’s Office could intervene in the case on the side of the recall campaign.
Tsenin indicated Monday that she will allow Attorney General Xavier Becerra’s office to represent the California Secretary of State’s Office in the case, a move expected to increase the chance of the recall campaign prevailing in appellate court.
In court documents, Persky argued that because he and other trial court judges are state officers, California’s secretary of state, not the county registrar, should have decided whether the campaign’s signature-gathering effort could proceed.
However, Tsenin noted that when she was a trial court judge in Municipal Court decades ago, the election was handled by the county, not the state.
Persky also contended 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 Persky would appear on the same ballot as the recall.
Lawyers for the recall, the county registrar of voters and the secretary of state disputed both positions.
The recall campaign claimed that the successor issue already has been settled by case law — in favor of voters — and Tsenin agreed. Whoever is elected would serve out the rest of Persky’s six-year term, which ends in 2022.
Recall lawyer Fredric Woocher also contended that the campaign has a fundamental right protected by the First Amendment to circulate petitions. Persky’s lawyers argued that requiring the campaign to comply with the state constitution does not violate their rights.
Tsenin had to rule before the end of the day Thursday or else the recall measure would have been barred under county regulations from appearing on the June ballot. Santa Clara County officials said the petition drive had to resume by Friday to give them enough time to count the signatures, allow county supervisors to certify the election, and have the registrar of voters prepare the ballot statements.
If Persky wins on appeal, any signatures the campaign collects would be rendered invalid, Tsenin ruled.
Only four judges have been recalled in California history, one in San Francisco in 1913 and three on the same ballot in Los Angeles in 1932. The ballots included the simultaneous election of successors. In 1986, three state Supreme Court justices were removed from office, but it was during a general election, not a recall.
Originally posted by The Mercury News
By Tracey Kaplan
Read the original article here