News

Editorial: Judge Persky's misjudgment

With dubious legal challenge, Brock Turner judge seeks to derail his recall election

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.

Related content:

Initial motion by Judge Persky

Declaration of Judge Persky

Opposition brief by recall campaign

Declaration of Asst. Registrar of Voters

Response brief by Registrar of Voters

Proposed order

Law professors voice opposition to Persky recall

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Comments

77 people like this
Posted by George
a resident of Old Palo Alto
on Aug 18, 2017 at 8:49 am

Perskey has every right to defend himself and every right to require the recall to follow the rules. The cost to the citizens is on the acusers. Palo Alto Online is a bit unreasonable to demand that Perskey make it easy for those whom many believe are running an unjust recall motivated by revenge..


59 people like this
Posted by Martha
a resident of Old Palo Alto
on Aug 18, 2017 at 9:10 am

[Portion removed.] I hope Persky is successful fighting off this [portion removed] group which is so terribly ignorant of how the US justice system operates. [Portion removed.]


46 people like this
Posted by Resident
a resident of Old Palo Alto
on Aug 18, 2017 at 9:17 am

Persky is a disgrace. The secretary of state, the county officials, and established practice support the recall process. He is willing to obstruct the process simply to drive up the cost to avoid facing the voters. No doubt a tactic recommended by his Trump political consultant. Bad judgement = bad judge.


81 people like this
Posted by SupportPerskey
a resident of College Terrace
on Aug 18, 2017 at 9:38 am

The recall effort is a terrible abuse, led by an ideologue who is using the issue for her own aggrandizement. Perskey can and should do anything in his power to block this effort.


49 people like this
Posted by What a surprise
a resident of College Terrace
on Aug 18, 2017 at 9:41 am

Thank you weekly for another biased, one sided editorial. We already knew that you were against persky given the tone of your reporting. I remember the days when the weekly wad objective. Nowadays we get one sided coverage, biased editorials and a general poor excuse for reporting.


36 people like this
Posted by Let-The-Truth-Prevail
a resident of Another Palo Alto neighborhood
on Aug 18, 2017 at 10:15 am

> 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.

Persky is either right, or wrong, in his assertion that the Sec. of State must be the authority overseeing the Recall process. If Persky is right, the Weekly's claim that Persky is trying to "disrupt" the Recall process gives Palo Altans another reason to dismiss the Weekly's opinions.


48 people like this
Posted by Persky = Trump
a resident of Professorville
on Aug 18, 2017 at 11:00 am

I agree with this editorial. I might add to it that Judge Persky's campaign disclosures reveal that he hired Brian Seitchik, Donald Trump's Arizona State Director, to run his campaign. Trump's Arizona campaign is where the "Mexicans are rapists" line originated.

The first thing this Trump operative did when he came in according to Persky's own disclosures is to poll. I am sure that the polling revealed what we all know which is that Persky polls lower than Ebola in this county. That's why they even changed the URL of Persky's own website to something that doesn't even have his name in it. He can't even have his own name in the URL of his own website -- that is how unpopular he is.

Knowing that he would lose with voters, Trump's operative decided to get into court with a frivolous lawsuit intended to intimidate his critics. That's classic Trump. I am sure it's in Trump's books. Sue sue sue.

His request? Ask another judge to issue a prior restraint of free speech against the peaceful democratic protesters who want to hold an election.

Maybe you think Persky's a good person. Maybe you think he's a good judge and you want the recall to fail. But you cannot justify or explain how a judge can himself engage in abuse of process against the democratic process and violate the First Amendment rights of the citizens to silence his political opponents. That is behavior unworthy of a judge. It is by itself a full justification for his recall.

The ends do not justify the means. The recall proponents are standing up for the rule of law. Judge Persky is acting arrogantly and lawlessly and should be recalled.


44 people like this
Posted by Self defene
a resident of Another Palo Alto neighborhood
on Aug 18, 2017 at 11:24 am

Oh please! Are we to believe for one second that Team Dauber wouldn't also be the first in court the instant it saw any advantage in doing so. This finger-shaking editorial is just weird in thinking court of all places is somehow out of bounds for Judge Persky in a recall election of him. His actions are entirely appropriate and reasonable.


38 people like this
Posted by Always on Dauber's Side
a resident of Professorville
on Aug 18, 2017 at 11:25 am

The weekly is always on the Dauber's side. You can count on it. Every time. Did Michele Dauber write this?

Persky has the right to use legal means to defend himself. I really dislike the way the Weekly says that judges will favor judges. We are not served by assuming that people will protect their own and that the judiciary is biased. Sounds like someone we know in the White House.


27 people like this
Posted by not alarmed
a resident of Another Palo Alto neighborhood
on Aug 18, 2017 at 12:30 pm

"Shady legal maneuver last week, in which he sued Santa Clara County to stop his own recall election"?

The ruling, if in Persky's favor, will not "stop" the recall election. The end result will be to change the agency overseeing the recall election if that is what the law requires.

I also don't see how seeking clarification of a law, that the Santa Clara County Registrar of Voters just last month said is NOT clear, constitutes a "shady legal maneuver":

"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 July 2017.

If the judge rules that the law says what the Recall Campaign claims it says, it is right to be miffed but should not be alarmed. The delay will be short. The ruling will be out in a few days.

If the judge sides with Persky, the recall campaign is entitled to be miffed here too but, again, not alarmed. No $6.9 million special election is needed. Just wait a few months and put it on the November-2018-much-less-expensive general election ballot instead.


27 people like this
Posted by mauricio
a resident of Embarcadero Oaks/Leland
on Aug 18, 2017 at 1:03 pm

mauricio is a registered user.

Persky knows very well that if the citizens of S.C. County get to vote on his recall, he would be removed from his judgeship by a huge margin. This is why he made a pact with the devil and hired one of the worst Trump enablers.

Persky is probably the worst judge in S.C. County's history, hopelessly biased against female victims of sexual and domestic abuse, hopelessly biased in favor of white college athletes behaving badly against women. He is a disgrace.


21 people like this
Posted by Stew Pid
a resident of Community Center
on Aug 18, 2017 at 1:15 pm

Yet another reason to get rid of this disgrace to his profession.


30 people like this
Posted by Shameful editorial
a resident of Charleston Meadows
on Aug 18, 2017 at 3:46 pm

"Shady legal manuver" and. " dubious legal challenge, Brock Turner judge seeks to derail his recall election"

Just when you thought that the weekly could not sink any lower with their one sided editorials, we get the comments above.
Really, weekly? The judge or for that matter any person does not have the right to pursue any and all legal steps, especially when an answer is not clear cut?
The weekly should really be ashamed of this screed they published under the guise of an editorial. Why are they so beholden to Ms dauber?


13 people like this
Posted by unraveling assertions
a resident of Another Palo Alto neighborhood
on Aug 18, 2017 at 4:00 pm

Given that the Country Registrar's manual says Perksy's question is valid and needs resolving, how was the Weekly able to conclude so quickly that his claim is dubious, "highly unlikely" to be successful?

What has me more perplexed is why the Recall Campaign is upset that the County and State are investing time to make sure that this election is done correctly.

The County's booklet alerted both sides to this issue so they couldn't have been surprised. I'd think that their donors would welcome getting an all-clear or re-direct BEFORE their $500k in donations is spent. Otherwise, the challenge could be raised later when the bank account is depleted and another $500k would need to be raised to move forward.




26 people like this
Posted by john_alderman
a resident of Crescent Park
on Aug 18, 2017 at 4:01 pm

john_alderman is a registered user.

Come on Palo Alto Online, since when does "follow the law" = "shady legal maneuver"? You can do better than that.

When the Buena Vista residents sued the city to block the closure, was that a "shady legal maneuver"? Or is shady just stuff you disagree with. That kind of "flexibility" with the law is disastrous for the country.


16 people like this
Posted by Miriam Palm
a resident of Old Palo Alto
on Aug 18, 2017 at 4:16 pm

Miriam Palm is a registered user.

For a different perspective, read the SF Chronicle's Open Forum opinion piece in yesterday's paper.

Web Link


15 people like this
Posted by JA3+
a resident of Crescent Park
on Aug 18, 2017 at 5:00 pm

"We urge you not to sign the petition, and to oppose the recall."

Web Link


19 people like this
Posted by unraveling assertions
a resident of Another Palo Alto neighborhood
on Aug 18, 2017 at 5:20 pm

The count of California legal scholars (not judges):

The Recall campaign has 3 California law school professors endorsing it, all from Stanford Law, in addition to Michele Dauber who is leading the campaign.

Opposing the recall are 89 California law school professors, female and male, 30 from Stanford Law School including Barbara Babcock the first woman appointed to its faculty, Dean Brest former Dean and constitutional law expert, and Pamela Karlan Stanford's election law and constitutional law scholar who served as a Commissioner of the California Fair Political Practices Commission.


14 people like this
Posted by Curmudgeon
a resident of Downtown North
on Aug 18, 2017 at 5:29 pm

"since when does "follow the law" = "shady legal maneuver"?"

Ever since they invented laws to give something to manuever with, and lawyers to do the maneuvering.

Clearly Persky knows he's in trouble with his constituency. That's why he's lawyered up.

It's like this old joke(?):

Junior partner telegram to senior partner, having just won his first case: "Justice has triumphed!"

Reply from senior partner: "Appeal immediately!!"


9 people like this
Posted by john_alderman
a resident of Crescent Park
on Aug 18, 2017 at 5:42 pm

john_alderman is a registered user.

@ Curmudgeon - They filed in the wrong jurisdiction, objecting definitely isn't "shady".


17 people like this
Posted by Resident
a resident of Old Palo Alto
on Aug 18, 2017 at 6:11 pm

They filed the way the county and the secretary of state told them to - they filed in the "right" jurisdiction. Persky is challenging the constitutionality of the election law and practices themselves, as laid down by the responsible authorities. It's ridiculous, it's a delay and obstruction tactic, but hey, I guess he figures his reputation is already pretty tarnished, so what the heck, go for it.


9 people like this
Posted by ODB
a resident of Old Palo Alto
on Aug 19, 2017 at 4:11 am

In this country we are supposed to have rule of law, not rule of angry mob.

Did judge Persky follow the sentencing guidelines or not? If he did, then I don't see what the problem is.

Now that Donald J. Trump is President, maybe we do have rule of angry mob.


15 people like this
Posted by mauricio
a resident of Embarcadero Oaks/Leland
on Aug 19, 2017 at 6:15 am

mauricio is a registered user.

The recall campaign had consulted the secretary of state office and follow their directions as far as the recall procedures are concerned They have done exactly as instructed by the California secretary of state. These are cynical delay tactics by a failed judge and his allies on the bench to try to derail the recall process. It will not succeed and he will be recalled by a huge majority come November.


Like this comment
Posted by rules
a resident of Stanford
on Aug 19, 2017 at 7:09 am

To any lawyers and law professors out there,

From the County booklet clipped above: "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."

Any educated guess on how the judge will rule after reading that section?

Who picks the successor - Governor Brown or the voters?

Cal. Const., Art. VI, Sec. 16
"(a) Judges of the Supreme Court shall be elected at large and judges of courts of appeal shall be elected in their districts at general elections at the same time and places as the Governor. ..
(b) Judges of SUPERIOR COURTS shall be elected in their counties at general elections ...
(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."


Like this comment
Posted by rules
a resident of Stanford
on Aug 19, 2017 at 7:16 am

Another one for the lawyers and law professors out there,

Any idea how the judge will rule on which government office, the Secretary of State or County, approves the recall petition?

"In the case of a state officer, including judges of courts of appeal and TRIAL COURTS, the number of signatures shall be as provided for in subdivision (b) of Section 14 of Article II of the California Constitution" Election Code Sec. 11221(c). "In addition to this chapter, Sections 13 to 18, inclusive, of Article II of the California Constitution...shall govern the recall of state officers." Election Code 11001(b).

Cal. Const., Art. II, Sec. 14
(a) "Recall of a state officer is initiated by delivering to the Secretary of State a petition alleging reason for recall.
(b) ...Signatures to recall Senators, members of the Assembly, members of the Board of Equalization, and judges of courts of appeal and TRIAL COURTS ...
(c) The Secretary of State shall maintain a continuous count of the signatures certified to that office."

"The Legislature shall ... provide for the officers and employees of each SUPERIOR COURT." Cal. Const., Art.VI, Sec. 4


9 people like this
Posted by Bunyip
a resident of Adobe-Meadow
on Aug 19, 2017 at 7:51 am

He gets my support and that of many others!


14 people like this
Posted by Defense
a resident of Another Palo Alto neighborhood
on Aug 19, 2017 at 2:48 pm

The last 3 elected Santa Clara County district attorneys oppose the recall. They have 27 years of experience between them. These are the head prosecutors for our County in which Judge Persky serves. Again - Prosecutors.

Folks, slow down this train headed for the cliff edge for a minute and think this through. Disagreeing with 2 decisions among the many that this one judge has made over years is not the basis for recall and was never intended for such. Recall is intended for corruption, incompetence or bias leading to systemic injustice. That does not exist.

To recall Judge Persky is to do an injustice, not get justice.



3 people like this
Posted by Curmudgeon
a resident of Downtown North
on Aug 19, 2017 at 4:30 pm

Persky certainly did his part. Absent the external publicity, Turner would have been back on the team when Stanfird convened for Fall, on the spot for more "action."


4 people like this
Posted by Bill Bucy
a resident of Barron Park
on Aug 20, 2017 at 12:10 pm

Article. II, Section 19 of the State Constitution defines a "local officer" as an elective officer of a city, county, school district, community college district, or special district, or a judge of a trial court.

State elections law defines “countywide office” as an elective office wholly within the county which is voted on throughout the county.

Persky ran unsuccessfully for a spot on the Santa Clara County Superior Court in 2002 and won a 2016 bid. Neither the California Secretary of State nor any voter outside Santa Clara County had a role in conducting or deciding those elections. Persky's argument that the state somehow has jurisdiction over the recall is ingenuous at best. It also indicates he believes that if the recall goes forward he will be ousted.


2 people like this
Posted by Curmudgeon
a resident of Downtown North
on Aug 20, 2017 at 6:00 pm

"Persky's argument that the state somehow has jurisdiction over the recall is ingenuous at best."

It also shows a disqualifying ignorance of the law, or and/or a willingness to bend the law for personal motives.


Like this comment
Posted by Gary
a resident of Mountain View
on Aug 21, 2017 at 1:40 am

I believe Judge Persky was first elected in 2004. He became a judge the hard way. He ran for the office. Most trial court judges are appointed by the Governor to fill vacancies and are later elected and re-elected by default when no one runs against them. In any event, a judge from another county will consider the issues raised as soon as August 23. I, for one, can wait.


Like this comment
Posted by rules change
a resident of Stanford
on Aug 21, 2017 at 7:59 am

Bill Bucy,

In 1998 voters did away with municipal courts. In 2002 they voted to delete now obsolete references to them.

The State elections law you mention now

#1. Trial court judges are among those listed as "state officers."

#2. Section 19 does not define "local officers."

In the field

State Controller Betty Yee - "under state law, judges are paid ...by the state."

The Santa Clara County - no judges are on its payroll. Web Link


5 people like this
Posted by Vote YES on the RECALL
a resident of Old Palo Alto
on Aug 21, 2017 at 9:02 am

@Gary Judge Persky was not elected in 2003. In 2002, he ran for a vacant seat against Ron Del Pozzo and was defeated.

In 2003, Gray Davis appointed him. He ran with out opposition in 2006, 2010 and 2016. His name has not appeared on a ballot since 2002, and he lost.

@rules change

Persky and his Trump operative believe that they have been successful throwing sand in the gears of this recall. All that they have done is infuriate the public by frustrating their rights and pushed this into November. When it comes up in November there will be much higher turnout and he will just lose by more votes.

His challenge is entirely frivolous But even if he relies on a buddy judge and "wins" then all he gets is that the Secretary of State approves the petition instead of the ROV, and the governor calls the election instead of the Supes, and the proponents get more days to collect signatures. Obviously that is not worth the waste of taxpaper dollars that Persky has caused to be expended with his frivolous lawsuit.

Persky should either resign or submit to the will of the voters. Those are his only choices. This litigation is a pathetic wasteful sideshow.


2 people like this
Posted by Gary
a resident of Mountain View
on Aug 21, 2017 at 10:11 am

Recall applies to "elective" (elected) offices in California. Trial court judges in California, including superior, municipal and justice courts before consolidation into just the California Superior Court (in each county) in 2002, were elected as I stated above. Recall is available. The rest is detail. However, circulating a recall petition that is not valid would not (seem to be) an exercise in freedom of spaech or the right to petition government for redress of grievances. It would just be misleading voters asked to sign. So, get the procedure straight and proceed lawfully.


Like this comment
Posted by Gary
a resident of Mountain View
on Aug 21, 2017 at 10:20 am

As to Judge Persky's first becoming a judge, I stand corrected. I remember that he ran for the office but should have checked the history online. Judge Persky did not win thst race but was later appointed by Governor Davis and then was never opposed - like almost all superior court judges.


5 people like this
Posted by Vote YES on the RECALL
a resident of Old Palo Alto
on Aug 21, 2017 at 11:24 am

Circulating any petition, Gary, is an exercise in free speech. I could write a petition on paper napkins and it could say "Recall Persky" in crayon and it would be an exercise in Free Speech. That is what the First Amendment provides.

The injunction is unlawful.

As to whether or not the Elections Code is unconstitutional as Persky argues -- what is it you think that the Proponents should have done? Do you think that they should have gone to Sacramento and asked the Secretary of State to approve it and then, when the Secretary of State refused because that is contrary to the Elections Code, they should have tackled him, forced it into his hands, made him read it, and then somehow required him to approve it? What exactly is your theory of what the proponents could have done given that the Elections code has stated clearly and unequivocally for more than 40 years that for purposes of recall trial court judges are local officers.

Persky filed this lawsuit to throw sand in the gears of the recall. He went to a fellow judge and got an injunction, one which violates the First Amendment, because his Trump operative is implementing a strategy of creating chaos. That is what Trump does -- file frivolous lawsuits, create chaos, refuse to play by the rules.

He didn't want to be recalled, so he filed this lawsuit to stall and delay and create chaos. Once he burns himself out with this legal tantrum, we will still recall him.


1 person likes this
Posted by next steps
a resident of Another Palo Alto neighborhood
on Aug 21, 2017 at 2:45 pm

Yes,

Where does the elections code state "clearly and unequivocally" that, for purposes of a recall, trial court judges are local officers? The clip above says it is from the elections code and that says "state officer" includes trial court judges.

The campaign can petition now someone posted. It just can't tell people that its petition has been certified, yet. Because it isn’t certified, the signatures collected aren't official. They can’t be turned in so it might as well wait.

You ask "what do you think the campaign should have done?" That's easy. It should have read the ROV's booklet, been concerned when it got to the part that says that what will happen after a recall is unclear, hired a lawyer to research it, and, if the lawyer also said that it is not clear, seek a declaratory judgment well before the filing deadline. There was time. The Turner decision was handed down January 2015, 2 1/2 years ago.

What I'd like to know is, if Persky is right, who gets to pick the judge who will reside in that courtroom until 2020? Governor Brown or a TBD governor elected November 2018?


1 person likes this
Posted by Vote YES on the RECALL
a resident of Old Palo Alto
on Aug 21, 2017 at 2:54 pm

I am so glad you asked these questions.

The California Elections Code Section 11001 (this is literally the first substantive section of the recall code), says:

11001.
For the purposes of this division, judges of courts of appeal shall be considered state officers, and judges of trial courts shall be considered county officers.
(Enacted by Stats. 1994, Ch. 920, Sec. 2.)


You ask "what do you think the campaign should have done?" That's easy. It should have read the ROV's booklet, been concerned when it got to the part that says that what will happen after a recall is unclear, hired a lawyer to research it, and, if the lawyer also said that it is not clear, seek a declaratory judgment well before the filing deadline. There was time. The Turner decision was handed down January 2015, 2 1/2 years ago.

Answer: First of all, the Turner decision was June 2, 2016. The assault was in January 2015.
Second, the campaign did every one of these things and cleared every decision in every detail with the County. Every preparation was made and all provisions were researched by campaign attorneys and by County attorneys.

What I'd like to know is, if Persky is right, who gets to pick the judge who will reside in that courtroom until 2020? Governor Brown or a TBD governor elected November 2018?

He isn't right. There is a Supreme Court directly on point that literally refutes this argument. It is frivolous.


Like this comment
Posted by sigh
a resident of Adobe-Meadow
on Aug 21, 2017 at 3:31 pm

"Second, the campaign did every one of these things and cleared every decision in every detail with the County. Every preparation was made and all provisions were researched by campaign attorneys and by County attorneys. "

And yet they missed the part where it says "state officer" includes trial court judges.

This all could have been resolved a long time ago. Instead it's up to Persky to make sure the recall effort follows the law. You can't blame Persky because the recall committee have been dragging their heels.

Sad really.


1 person likes this
Posted by SC County is not an island
a resident of Another Palo Alto neighborhood
on Aug 21, 2017 at 3:44 pm

This all could have been resolved a long time ago if Persky just respected the County residents and taxpayers, instead of filing a frivolous lawsuit. Please note that the California Attorney General, the Secretary of State, and SC County all have sided with the recall campaign on this issue.

Complete waste of time and taxpayer money.

Sad really.


Like this comment
Posted by Gary
a resident of Mountain View
on Aug 21, 2017 at 3:46 pm

Good to see some civic spirit. We will know as soon as August 23 how the recall will proceed. Proponents can probably live with a ruling that they must file with the Secretary of State. I predict neither side will get a stay from an appellate court. So the recall will likely proceed shortly. But I have a question for proponents. Do you contend that Judge Persky has been more lenient on (some) sex offenders than other judges or do you contend it does not matter?


Like this comment
Posted by Vote YES on the RECALL
a resident of Old Palo Alto
on Aug 21, 2017 at 4:43 pm

The recall campaign has documented that Persky is more lenient than other judges in the county with respect to privileged perpetrators, such as collegiate athletes, of violence against women.

You can read about some of the other cases here: Web Link

For example, according to a detailed study, Persky is more lenient with respect to felony child porn than every other judge in the county. You can read about that here: Web Link

In that case, even Persky's most ardent defenders were forced to admit he was more lenient than other judges:

But even some public defenders said the four-day sentence in this case appeared to be unique.

"Sajid Khan, a deputy public defender in Santa Clara County who published a petition in support of Persky, said six months was the typical punishment for this offense and that Chain’s outcome seemed “unusual”.

Asked about the four-day deal, Andy Gutierrez, another deputy public defender who has expressed support for Persky, said: “That would be a little bit eye-raising.”

This kind of a light sentence is more common for offenses such as disturbing the peace or being intoxicated in public, he added. “Possession of child pornography is a step up from that.”


3 people like this
Posted by sad
a resident of Greater Miranda
on Aug 21, 2017 at 5:14 pm

@vYoTr
"The recall campaign has documented that Persky is more lenient than other judges in the county with respect to privileged perpetrators, such as collegiate athletes, of violence against women. "

And when this was independently investigated, no bias was shown.

You've continued to repeat this but have yet to provide any independent information that backs it up. All you have is the recall campaign's "research" and that's worth nada since it's completely self-serving.


Getting back to the topic at hand, the recall committee originally had postponed their election effort because, they said, they didn't want to cost the county money running a special election. Now we find that was not the case and they just didn't have their act together. Even worse, given the extra time, they wait until the absolute last minute to get approval from the wrong people!

For this committee to have now the gall to blame Persky for doing what he's allowed to do shows the level they're willing to stoop.

Really, this is all the recall committee's fault and they're trying to blame their ineptness on Persky?


Like this comment
Posted by some musings
a resident of Another Palo Alto neighborhood
on Aug 21, 2017 at 5:50 pm

Yes,

It is easy to see that the elections code is confusing. You post that section 11011 says "judges of trial courts shall be considered county officers" but 11221(c) says trail court judges = state officers.

Clearly, the campaign's clearing all the steps with staff in the County Registrar of Voters' office was not enough.

Page one of its Recall booklet says in BOLD do NOT rely on us.

"This 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... Because of the complexity of the recall process, all parties involved are advised to seek private legal counsel." Web Link. On this particular issue the ROV adds that "Elections Officials [are to] seek their own legal counsel to clarify this issue should it arise."

You add that the campaign "did every one of these things" too. That the campaign's lawyers did not alert it to this hiccup when there was time to get it clarified is unfortunate unless it did go for a declaratory judgement. If it did, the drive can continue unless of course the judge's ruling was not in the campaign's favor.

The Secretary of State is arguing that the County, not the State, should own recalls of trial court judges. That is not surprising. The SOS does not want to add highly visible and contentious recalls to its already tapped out employees' plates.

But this will be decided based on which side has the most persuasive legal argument. If the judge ends up siding with Persky, the SOS can try the ballot or state legislature to get it changed.






You ask "what do you think the campaign should have done?" That's easy. It should have read the ROV's booklet, been concerned when it got to the part that says that what will happen after a recall is unclear, hired a lawyer to research it, and, if the lawyer also said that it is not clear, seek a declaratory judgment well before the filing deadline. There was time. The Turner decision was handed down January 2015, 2 1/2 years ago.

Answer: First of all, the Turner decision was June 2, 2016. The assault was in January 2015.
Second, the campaign did every one of these things and cleared every decision in every detail with the County. Every preparation was made and all provisions were researched by campaign attorneys and by County attorneys.



Like this comment
Posted by Gary
a resident of Mountain View
on Aug 21, 2017 at 9:44 pm

The case filed by Judge Aaron Persky against county Registrar of Voters Shannon Bushey and other "real parties in interest" appears online at the Superior Court case portal to be set for hearing August 23 at 1:30 pm - no courtroom or judge is disclosed. Recall proponents should provide the courtroom on this thread when ascertained.


Like this comment
Posted by recall boots new judge
a resident of Stanford
on Aug 22, 2017 at 5:40 am

Gary,

The recall campaign isn't in that much of a hurry to get this on the ballot. Last Friday it used its peremptory challenge, a one-time free pass, and got female Judge Marjorie Laird Carter taken off the case.

"If no judge steps up in time, Wednesday’s hearing would be postponed."

Web Link

Web Link

The same day it replaced its attorney of record.

Lots of Santa Clara County politicos are parties on the recall side including City Council members Pat Burt, Magdalena Carrasco, and Raul Peralez and Santa Clara County Board of Education Member Grace Mah as well as political hopefuls and at least one spouse of the same.

17CV314311 | Aaron Persky vs Shannon Bushey


Like this comment
Posted by Paul S.
a resident of another community
on Aug 22, 2017 at 9:39 am

Perhaps we all could move on from this tiresome discussion if Judge Persky were nominated to the California State or U.S. Supreme Court as an Associate Justice.

Then many concerned Palo Altans and the Weekly would be rid of him once and for all.


Like this comment
Posted by Gary
a resident of Mountain View
on Aug 22, 2017 at 9:54 am

Usually a preemptory challenge of a state trial (Superior) court judge must be exercised before the judge has ruled in the case. Perhaps the "real parties in interest" found an exception when the initial ruling is on an ex parte application with little notice. In any event, we now are left to worry about when the lawsuit filed by Judge Persky will be decided. The Court (presiding judge) should make sure there is a qualified judge ready to hear arguments tomorrow.


Sorry, but further commenting on this topic has been closed.

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