Regardless of whether one believes Santa Clara County Superior Court Judge Aaron Persky should be removed from office because of his past sentencing decisions in sexual assault cases, he won't be helped by his shady legal maneuver last week, in which he sued Santa Clara County to stop his own recall election.
Even if he is successful, which seems highly unlikely, the primary effect will be forcing the expenditure of taxpayer money for the county to defend itself against his lawsuit and then pay for an expensive special election caused by the delay resulting from his suit.
Persky's sudden legal maneuver occurred last Friday, the day after the county Registrar of Voters gave the final go-ahead to the recall petition drive, when he sought an injunction blocking the recall campaign from the very court on which he serves.
It is a tactic with only one possible objective: to tie up the recall effort in litigation and delay the election to remove him from office. According to the Registrar of Voters, if the courts do not resolve Persky's claims in the next two weeks, the county will be unable to meet the legal requirements for putting the recall on the regular June 5, 2018 ballot. This will likely force the county to hold a special election at substantially greater cost to county taxpayers. Earlier estimates by the Registrar of Voters pegged the cost of a special election at $6.9 million, compared to about $575,000 if held at the same time as a regular election. The cost difference led recall organizers to postpone their campaign and align it with the June election.
Persky's legal position, which is opposed by both the Secretary of State and Santa Clara County, argues that under the California Constitution only the Secretary of State can approve and oversee the recall of a local judge. He is demanding that the county halt the recall process and direct the recall organizers to the Secretary of State's office to begin anew.
He also argues that a successor judge candidate may not appear on the same ballot and be elected in the same election. Instead, if he were to be recalled by voters, he says, the law requires the governor to appoint his successor. The state Election Code and Secretary of State's manual on recall elections both contradict Persky's position.
Persky is grasping at straws, at taxpayers' expense. The Legislature, the courts, including the California Supreme Court, and the Secretary of State have developed extensive laws, policies and judicial interpretations that all run contrary to his arguments. He is asking the courts to rule that significant parts of the state Elections Code are unconstitutional and that established practices of county election officials which have been developed at the direction of the Legislature and Secretary of State, should be thrown out.
Persky does have one troubling factor working in his favor — he is a judge trying to derail the process for recalling judges in a case that will be decided by judges who are largely against judicial recalls. And not surprisingly, virtually all the judges in Santa Clara County, where Persky filed his lawsuit, have publicly committed their support to him in the recall election.
Persky's decision to raise constitutional objections to the established recall process therefore creates an unusual challenge for the courts and a chilling effect on other public officials, including the Registrar of Voters and the County Counsel, who must regularly work with judges and the courts on other matters.
With no judge in the county able to hear Persky's case, the court has brought in a retired Orange County judge who now lives in Santa Cruz to hear the matter. Last Friday, at Persky's request, she granted a temporary restraining order stopping the recall and ordering the halt of any signature-gathering. A full hearing will be next held next Wednesday, Aug. 23. The county has filed briefs opposing Persky.
For how little Persky has to gain from this legal challenge he risks further loss of support from voters. Especially damaging is his demand that the recall campaign be barred from gathering signatures until the case is adjudicated. One of the most fundamental rights of all citizens under the First Amendment is the right to petition the government for a redress of grievances, including the right to recall and remove elected officials.
Persky did not need to seek a court order halting the circulation of the approved recall petitions while he sought judicial review of his arguments. He could have left the question of the validity of signatures gathered until the court ruled on his claims. But by trying to shut down the petitioning, he demonstrated not only a desire to delay and disrupt the process and possible election but a lack of respect for one of the most important constitutional protections embodied in our Bill of Rights.
Between now and Sept. 1, by which time the county says it must have a court ruling or it will be unable to hold the recall election next June, we hope Judge Persky reconsiders this obstructionist strategy, drops his challenge and accepts the ultimate will of the citizens of Santa Clara County in a June 2018 election.