News


Ruling temporarily halts campaign to recall Brock Turner judge

Persky asserts state, not county, should have authorized signature gathering

The effort to recall Santa Clara County Judge Aaron Persky has been temporarily halted, with a judge approving a restraining order to stop the campaign from collecting the signatures needed to place the measure on the ballot next summer.

The San Jose Mercury News reported that retired Orange County Judge Marjorie Laird Carter granted the order on Friday afternoon, blocking the campaign from gathering signatures for the next 12 days, until an Aug. 23 hearing.

This was a small victory for Persky, whose six-month sentence for former Stanford University student Brock Turner's sexual assault of an unconscious woman outside a fraternity party on campus in 2015 was widely criticized. The recall campaign, led by Stanford law professor Michele Dauber (a family friend of the young woman), has alleged Persky has shown a pattern of bias against women and defendants of color in sexual violence cases.

The campaign organizers announced just hours before the restraining order was granted that they had received the green light from the Santa Clara County Registrar of Voters to start collecting approximately 90,000 signatures from voters to put the recall on the June 2018 ballot.

According to the Mercury News, Persky argued in court documents that because he is a state officer, California’s secretary of state rather than the county registrar should have decided whether the campaign's signature effort could move forward.

In a statement, Dauber called Persky's motion to block the campaign from gathering signatures "a last-ditch desperate effort," adding that the campaign did everything correctly.

"The Constitution and the California Elections Code are completely clear. We scrupulously followed every provision required by law, as did the County in approving our petition and telling us that we can collect signatures," she said.

Related content:

Brock Turner judge responds to recall

Group seeking to recall Brock Turner judge to petition for 2018 ballot

Law professors voice opposition to Persky recall

Editorial: Judge Persky's misjudgment

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Comments

8 people like this
Posted by JA3+
a resident of Crescent Park
on Aug 12, 2017 at 4:47 pm

The Restraining Order and Order to Show Cause, as signed yesterday by [Ret] Judge Marjorie Laird Carter:
Web Link


36 people like this
Posted by First Amendment Matters
a resident of Old Palo Alto
on Aug 13, 2017 at 1:11 pm

Circulation of a petition is core political speech protected by the First Amendment. The judge's injunction is a flatly unconstitutional restraint of free speech. It is ridiculous that the recall campaign had to litigate this in front of Persky's co-workers in the very courthouse where Persky works.

Whether you like Persky or support the recall or not you should be very afraid of rogue judges issuing injunctions blocking your political speech. Just because it applies to feminists today does not mean that it won't apply to you tomorrow. Petitioning is a basic, core, constitutional right.

Where are the lawyers coming out to condemn this blatant violation of the First Amendment?

Being part of the same old-boys network with Persky is not a justification for your silence.


26 people like this
Posted by Rule of Law Matters
a resident of Community Center
on Aug 13, 2017 at 1:19 pm

If you want to circulate a "petition", no one is stopping you. Go stand out on University right now and collect signatures to your heart's content. If you want to initiate a recall, follow the legal process to do it.


26 people like this
Posted by First Amendment Matters
a resident of Old Palo Alto
on Aug 13, 2017 at 1:25 pm

Actually, read the injunction. The proponents are enjoined from collecting any signatures on a petition. They DID follow the legal process. To the letter. It is Persky who is not following the legal process. He has gone outside the legal process to try to get the California Election Code declared unconstitutional because he doesn't like being recalled. In fact, Persky is abusing the legal process to stall and delay and obstruct the democratic process. Judge Carter is helping him do that with her unconstitutional injunction.

No matter which side of this issue you are on you should be worried about judges (Persky's co-workers, no less) enjoining First Amendment protected political speech.


3 people like this
Posted by Resident
a resident of Community Center
on Aug 13, 2017 at 2:34 pm

Resident is a registered user.

@Rule of Law
Uh, the recall initiative that was put on hold is a recall "petition". If you mean I'm still free to circulate a petition to ban bananas on Sundays, then I guess you're right.


7 people like this
Posted by not a good start
a resident of Barron Park
on Aug 13, 2017 at 3:56 pm

Receive Approval of the Recall Petition
Proponents must file two blank copies of the proposed petition with the Secretary of State within ten days after the filing of the answer to the notice of intention, or, if no answer is filed, within ten days after the expiration of the seven-day period for filing the answer. The Secretary of State must, within ten days of receiving the copies of the petition, determine whether the proposed form and wording of the petition meet the necessary requirements and notify proponents in writing of the findings. If it is found that the petition does not meet the requirements, the notification must include a statement of what alterations in the petition are necessary. Then, the proponents must file two blank copies of the corrected petition with the Secretary of State within ten days after receiving the notification.

The submitted blank copies of the petition will be carefully reviewed for uniformity correctness and will be compared to the notice of intention and publication to assure accuracy in text, punctuation, capitalization, spelling, format, etc. If the comparison discloses discrepancies, the petition will be rejected.

The ten-day correction notification period and ten-day filing period for corrected petitions is repeated until the Secretary of State finds that no alterations are required. No signatures may be obtained on the recall petition until the form of the petition has been approved by the Secretary of State.


18 people like this
Posted by Rule of Law Matters
a resident of Community Center
on Aug 13, 2017 at 10:25 pm

@First Amendment Matters & Resident - What you two seem to fail to understand is that the recall petition is a certified legal document. That certification has been revoked, and the judge enjoined the circulation of the decertified petition. That isn't a violation of your first amendment rights, you can still say what you want about Persky, you can make up whatever petition you want, and gather signatures (Persky Sucks, Sign here______). They only thing they can't do is continue to collect signatures on the now decertified legal document, the recall petition. And if you did, it would be pointless anyway, because the signatures would be invalid. There is a clear legal path forward, go get the petition certified by the SoS like it should have been in the first place.


22 people like this
Posted by Last Straw
a resident of Old Palo Alto
on Aug 14, 2017 at 8:29 am

So done with Persky. He is not a judge of the people. The Brock Turner case plus the Trump consultant and now this. He is showing his true colors.


4 people like this
Posted by Missing "r"
a resident of another community
on Aug 14, 2017 at 9:45 am

JA3+

Thanks for providing the link.

The Anti-Recall Campaign's attorneys also claim that the Recall Campaign's petition is "misleading" and "inaccurate" where it states that "We demand an election of a successor to that office."

Recall petitions must call for an election "to elect a successor to the officer" or the Governor "to appoint a successor to the officer."

"That office" vs. "the officer" -- how do you think the judge will rule on the missing "r" part?


9 people like this
Posted by Rule of Law Matters
a resident of Community Center
on Aug 14, 2017 at 11:26 am

You can tell the anti-Persky campaign is being run by a law professor and not a practicing lawyer. You MUST dot the i's and cross the t's with stuff like this or you'll get hung out to dry by the system. My advice: get professional help if you are serious about this. Persky did.


23 people like this
Posted by First Amendment Matters
a resident of Old Palo Alto
on Aug 14, 2017 at 11:43 am

@missing "r"
That is not the basis of the complaint. The form approved by the county is the exact form provided by the County here Web Link in appendix H, which says "successor to that office."

Judge Persky is not arguing that there is an "r" missing. He is arguing that the people of this county do not have the right to recall him because, uh yunno, he doesn't want to be recalled.

He is trying to have the entire elections code addressing recall of Superior Court Judges struck down as unconstitutional.

Your constant slander against Professor Dauber's legal ability is transparently misogynist. This petition was prepared by the top Democratic election law firm in the state -- P.S. all the campaign lawyers are men.

Finally, for those of you who are aghast at the thought that a judge could be recalled you should take another look at Judge Persky. He has decided that it is more important to keep his job than it is to protect the First Amendment rights of the people of this County -- people he is sworn to serve. He took an oath to uphold the Constitution of the United States and he has asked for an injunction that violates the First Amendment rights of every citizen of this county. That alone is disqualifying.

#RecallPersky
#NeverthelessShePersisted


14 people like this
Posted by No rogues
a resident of Another Palo Alto neighborhood
on Aug 14, 2017 at 1:14 pm

"Rogue judge"?
One of the first comments says a rogue judge rendered this decision.
Apparently this person and the people leading this effort think that any judge making a decision they don't agree with has gone "rogue".
When the Council on Judicial Performance cleared Judge Persky of any wrong doing, Dauber told us to simply disregard the decision as being wrong.
Persky and this judge did and are following the law as it was and is. That you don't like the law doesn't give you the moral right to denigrate the people who follow it.


17 people like this
Posted by Annette
a resident of College Terrace
on Aug 14, 2017 at 2:13 pm

Annette is a registered user.

I wish to cast an informed vote regarding Judge Persky and knowing the background of those who present opinions and information is one way to evaluate if a person's comments are based on a foundation of experience and education. I am impressed that Judge La Doris Cordell does not support this recall and I think the independent judiciary argument is compelling. It would be very helpful to know the credentials of those posters who appear to be writing with knowledge about the recall process and this recent development. Any affiliation with the Courts? The Recall Campaign? Stanford? There's been enough damage in this case w/o also destroying the career of a judge who followed the probation department's sentencing recommendation and who was later cleared of misconduct by the California Commission on Judicial Performance. There's a lot to sort through here.


3 people like this
Posted by upstander
a resident of Barron Park
on Aug 14, 2017 at 2:33 pm

"Judge Persky is not arguing that there is an "r" missing. He is arguing that the people of this county do not have the right to recall him because, uh yunno, he doesn't want to be recalled. "

Err, no, he argued that the campaign needed to follow the law and get approval from the Secretary of State:

"No signatures may be obtained on the recall petition until the form of the petition has been approved by the Secretary of State."

That's a pretty clear statement.

If you'd just followed the law, there would be no issue.


3 people like this
Posted by Missing "r"
a resident of another community
on Aug 14, 2017 at 2:33 pm

1st Amendment Matters,

The anti-recall campaign's court paper says that the pro-recall campaign "has the misleading and inaccurate statement 'We demand an election of a successor to that office.'" Web Link

The booklet you linked to doesn't answer the "r" -- office or officer - question because it says the booklet "is for general information only and does not have the force and effect of law, regulation, or rule. In case of conflict, the law, regulation, or rule will apply."

But BEFORE any signatures can be collected doesn't someone need to figure out what happens if the recall wins? Is there to be "an election of a successor" or does Governor Brown get to decide?

Page 23 of that booklet:

"Exception: Although it is clear that Superior Court judges are subject to recall, Article VI, Section 16 of the California Constitution creates some legal uncertainty as to whether the successor to a recalled judge is elected by the voters or appointed by the Governor. If it is the latter, obviously the need for a contest involving successor candidates is eliminated. It is, therefore, suggested that Elections Officials seek their own legal counsel to clarify this issue should it arise." Web Link


Posted by herb
a resident of Downtown North

on Aug 14, 2017 at 3:46 pm


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1 person likes this
Posted by JA3+
a resident of Crescent Park
on Aug 14, 2017 at 5:35 pm

"... Article VI, Section 16 of the California Constitution creates some legal uncertainty ..."

Article VI is found here:
Web Link


4 people like this
Posted by No rogues
a resident of Another Palo Alto neighborhood
on Aug 14, 2017 at 7:24 pm

I think it is is clear what Article VI section 16 means. Though I don't know if other parts of the law applies.Here is Art. VI sec 16:
(c) Terms of judges of superior courts are six years beginning the Monday after January 1 following their election. A vacancy shall be filled by election to a full term at the next general election after the second January 1 following the vacancy, but the Governor shall appoint a person to fill the vacancy temporarily until the elected judge's term begins.

The above means that if the Judge is recalled, in the NEXT General election a new judge will be voted on to replace Persky. Until then the Gov. will appoint a temporary replacement.

A petition that asserts a replacement judge may or will be immediately elected could be fatally defective to the recall effort.

Don't blame rogue this or that's for a badly written petition if this is the outcome - it is the law.


5 people like this
Posted by First Amendment Matters
a resident of Old Palo Alto
on Aug 14, 2017 at 7:40 pm

Do you think that the County and the Secretary of State and the Attorney General and the Governor and the CA Supreme Court and the entire Assembly had no idea what they were doing and they all failed to read the Constitution? They were just waiting for anonymous internet trolls to read it to them?

Obviously, that is not very likely. The petition followed the exact form required by the law. That's why the county approved it. A recall does not create a "vacancy" within the meaning of the Constitution because the successor is immediately elected and takes office and there is never a moment when the office is vacant. That is a known fact, already determined by courts. This is frivolous with a capital F.


6 people like this
Posted by head in sand
a resident of Adobe-Meadow
on Aug 14, 2017 at 9:50 pm

"Obviously, that is not very likely. The petition followed the exact form required by the law. "

Obviously it didn't. That's why the judge put a hold on it.


1 person likes this
Posted by Stew Pid
a resident of Community Center
on Aug 14, 2017 at 10:43 pm

@head in sand:

"Obviously it didn't. That's why the judge put a hold on it."

Not obvious. Because you see, the judge could be wrong. Think that's a first?


Like this comment
Posted by Rule of Law Matters
a resident of Community Center
on Aug 14, 2017 at 11:04 pm

[Post removed.]


8 people like this
Posted by @PAFreePress
a resident of another community
on Aug 15, 2017 at 4:28 am

First Amendment Matters? Have you Googled Portion removed by Palo Alto Online staff, Post removed by Palo Alto Online staff, Post removed due to disrespectful comments or offensive language, Post removed due to same poster using multiple names. Your voice has been altered, spun by the Palo Alto Online staff. Does that matter to you? Lets see how quickly they remove this benign post!


Like this comment
Posted by the constitution
a resident of Stanford
on Aug 15, 2017 at 6:04 am

1st Amendment,

"Do you think that the County and the Secretary of State and the Attorney General and the Governor and the CA Supreme Court and the entire Assembly had no idea what they were doing and they all failed to read the Constitution?"

Two points:

California legislature's recall laws have been ruled unconstitutional before.

As mentioned above, the Santa Clara County Registrar of Voters says in black & white that, in your words, it "has no idea." Its Guide to Recall - "California Constitution creates some legal uncertainty as to whether the successor to a recalled judge is elected by the voters or appointed by the Governor...Elections Officials [must] seek their own legal counsel to clarify this issue
should it arise." Web Link


2 people like this
Posted by not a good start
a resident of Barron Park
on Aug 15, 2017 at 7:41 am

@Stew Pid

And the judge could be right, did you ever think of that?

If there was no doubt, the judge wouldn't have agreed to put a stay on the petition. So, obviously, there is an issue with the petition and questions to be answered.

My previous quote from the recall literature states: "No signatures may be obtained on the recall petition until the form of the petition has been approved by the Secretary of State."

If they had got approval from the Secretary of State, there wouldn't be an issue. Since the recall campaign claim they don't need it, they need to prove that. Or they could just follow the law instead of fighting it.


6 people like this
Posted by btw
a resident of Evergreen Park
on Aug 15, 2017 at 8:05 am

I've not read the trial transcripts (have you?), so don't know if recalling the judge is appropriate, but if Persky had a pattern of bias, why did nobody say that when he was up for re-election? Why did nobody run against him?

Looks like the recall is to to intimidate judges and make an example of this case. The recall cannot undo the assault, so what's the purpose?

[Portion removed.]


6 people like this
Posted by Robert Smith
a resident of Duveneck/St. Francis
on Aug 15, 2017 at 10:23 am

It appears that there is large doubt as to exactly how to proceed with this recall. It is not as cut-and-dried as we might have thought or hoped.

The fact that Judge Persky has raised issues hardly means that he is being obstructive as some seem to be suggesting.

My experience is that when you give due process a chance, you get a reasonable result most of the time.


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