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.