Judge tentatively rules in favor of Recall Persky campaign | News | Mountain View Online |


Judge tentatively rules in favor of Recall Persky campaign

With injunction lifted, campaign to begin gathering signatures as soon as possible

The group working to unseat Santa Clara County Judge Aaron Persky won a legal victory on Monday afternoon, when a retired judge tentatively ruled that its recall petition is lawful and can proceed, lifting a temporary restraining order that had prevented the campaign from gathering signatures to place the measure on an upcoming ballot.

Kay Tsenin, a retired San Francisco judge brought in to hear a legal challenge brought by Persky, disagreed with Persky's claims that the secretary of state, rather than the Santa Clara County Registrar of Voters, should oversee the recall, and that the replacement for a recalled judge should be appointed by the governor rather than elected.

Persky's attorney, Elizabeth Pipkin of firm McManis Faulkner, argued in court in San Jose on Monday that under the state constitution and election code, trial court judges like Persky should be considered as state officers, so should not be recalled in a county election.

In her tentative ruling, Tsenin disagreed, and said the recall petition was "properly filed with the Registrar of Voters."

At the request of the recall campaign's attorney, Fredric Wooche of Los Angeles firm Strumwasser & Woocher, Tsenin on Monday also lifted a temporary restraining order granted by a previous judge that had blocked the campaign from collecting signatures. She noted that if Persky's legal team appeals the final decision, a court of appeals could decide to invalidate these signatures.

Monday's ruling "validates our belief that Judge Persky filed a frivolous lawsuit  that was intended to stall and delay and obstruct the democratic process, and also to waste taxpayer money," Recall Persky chair Michele Dauber told reporters after the hearing.

The campaign intends to start collecting signatures as soon as possible, Dauber said. Official petitions were being held by the campaign's petition circulator in Los Angeles, who was immediately called after the hearing to put them on a truck to Santa Clara County.

"We are hoping to be out there tomorrow," she said.

The Registrar of Voters and California attorney general have also both said they disagree with Persky's position. On Friday,

California Attorney General Xavier Becerra filed a motion to intervene in the lawsuit, siding with the recall campaign.

Tsenin gave Persky's lawyers until Wednesday to respond to what Pipkin argued were "new" arguments in the attorney general's intervention application.

The judge will issue her final decision on Thursday, Aug. 31, just one day before a looming deadline for the recall campaign to start collecting signatures in order to be able place the recall measure on the June 5, 2018 ballot. If the campaign was unable to start collecting signatures by Sept. 1, the recall measure would have been placed on the November 2018 ballot.

Pipkin told reporters after the hearing that they will "potentially" appeal the decision but are hopeful Tsenin will ultimately agree that their "interpretation is correct and does comport with the constitution of California."

"It's not a stall tactic; it's about following the law," Pipkin said. "The people of this state voted for the constitution, they approved it and that needs to be respected." 

Steve Mitra, assistant county counsel for Santa Clara County, appeared in court on behalf of the Registrar of Voters, and Deputy Attorney General Aaron Jones on behalf of the secretary of state.

Mitra requested that Tsenin restore the 17 days the recall campaign lost during this legal challenge to gather signatures. The recall campaign will now have 160 days to collect 58,634 signatures required to place the measure on the ballot.

Dauber launched the effort to unseat Persky after his controversial sentencing of former Stanford University student Brock Turner, but has since argued that the judge's record illustrates a pattern of bias against women and defendants of color in sexual violence cases.

Opponents of the recall effort argue that the campaign threatens judicial independence, and that Persky made a lawful decision in the Turner case.

Related content:

Storify: Inside the Brock Turner case

What is it worth to you?


3 people like this
Posted by Appealing
a resident of Cuernavaca
on Aug 28, 2017 at 4:55 pm

Why the campaign supporters did not try to appeal the decision?

5 people like this
Posted by Gary
a resident of Sylvan Park
on Aug 28, 2017 at 10:11 pm

Gary is a registered user.

The article reports that there will be no final decision until Thursday. Then, if the judge does not change her mind Judge Persky's lawyer may ask the judge to 'stay" the final ruling (judgment) pending an appeal. The judge would likely deny the "stay" request. Judge Persky's attorney could then initiate an appeal and ask the Court of Appeal for a stay pending the appeal. Such a request would be denied unless the Court of Appeal were to get the impression that the judge in the Superior Court is certainly wrong. But staying the judgment would not halt the recall petition drive. So I bet Judge Persky's lawyer files a petition for a "writ" in the Court of Appeal instead or or in addition to taking an appeal. Of course, I am shooting from the hip. I have not even seen the papers filed or the arguments made.

7 people like this
Posted by ResidentSince1982
a resident of another community
on Aug 29, 2017 at 4:31 pm

ResidentSince1982 is a registered user.

Other news accounts have quoted Judge Tsenin as saying that back when she ran for Municipal Court Judge in San Francisco, the county registrar handled the election.

But the issue is that Persky is not a judge in Municipal Court as the Election Code envisions for a recall effort. The issue is how recalls apply to judges of the Superior Court of Caliornia, paid by the State and not the city or county or special district like Municipal Court judges were.

I think Judge Tsenin may realize this as given that she made that comment, surely the Persky side will put that point into their written response. But if not, it's not surprising that it will fall to the Court of Appeals when there are inconsistencies and ambiguities in the Election Code. The county recall handbook even literally says that there are ambiguities.

One thing this is not is frivolous Dauber continues to amaze with her inflammatory rhetoric attacking the judicial process.

3 people like this
Posted by ResidentSince1982
a resident of another community
on Aug 29, 2017 at 8:08 pm

ResidentSince1982 is a registered user.

Oh yes now another source quotes her as saying that when she was a Municipal judge her salary came from San Francisco not the state. She's got the right idea that things are different now.

3 people like this
Posted by PeterCao111
a resident of another community
on Aug 30, 2017 at 5:46 pm

PeterCao111 is a registered user.

[Post removed -- poster banned due to persistent violations of terms of use]

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