News

Appellate court justices reject Judge Persky's appeal, permit recall election

Brock Turner judge argued recall campaign should have been filed with state

The recall of Judge Aaron Persky will be decided on by Santa Clara County voters when it appears on the June 5 ballot as planned after the state's 6th District Court of Appeal announced their denial of his appeal, according to the Recall Persky campaign.

Persky's history as a Superior Court judge became controversial after he handed down a six-month sentence to former Stanford University swimmer Brock Turner, who was convicted of the sexual assault of a woman after meeting her at a party on campus.

Persky filed an appeal on the grounds that the recall campaign should not have been filed with the Santa Clara County Registrar of Voters, but rather with the California Secretary of State because he believed that he was considered a "state officer," not a "local officer."

However, Administrative Justice Franklin Elia, Associate Justice Adrienne Grover and former Justice Wendy Clark Duffy, the trio who presided over the appellate hearing last Tuesday, disagreed and stated in their decision that they found "no procedural error and therefore must affirm the order."

The lawsuit appeared originally in front of retired San Francisco Judge Ksenia Tsenin in August 2017, at which time she lifted a temporary restraining order that Persky had filed that delayed the collection of signatures for his recall, according to the justices' court decision.

What's local journalism worth to you?

Support Palo Alto Online for as little as $5/month.

Learn more

Tsenin rescinded the order, determining that the county's Registrar of Voters was the proper official to review and approve recall petitions for Superior Court judges and that "the recall petition submitted in this case was neither misleading nor inaccurate," the document states.

It was at that point that Persky filed his appeal.

The justices sided with the Recall Persky campaign, but also with Secretary of State Alex Padilla, who showed opposition to Persky's order, stating that the Registrar of Voters was the proper place to oversee the recalling of a Superior Court judge, who in fact was "a local officer."

"We are thankful that the Sixth District Court of Appeals sided with the voters and rejected Judge Persky's appeal to stop the recall collection," recall chair Michele Dauber said in a statement. "Judge Persky has proven time and time again that he will do anything he can to impede the rights of voters."

Dauber, a Stanford University professor, has spearheaded the recall campaign and the petition, which garnered over 94,000 signatures in order to bring the motion to the county's Board of Supervisors. The board approved adding the recall to the June ballot on Feb. 6.

Stay informed

Get daily headlines sent straight to your inbox.

Sign up

The decision is coming just in time since the county's final printing date for the June ballot is April 3.

— Bay City News Service

Follow Palo Alto Online and the Palo Alto Weekly on Twitter @paloaltoweekly, Facebook and on Instagram @paloaltoonline for breaking news, local events, photos, videos and more.

Appellate court justices reject Judge Persky's appeal, permit recall election

Brock Turner judge argued recall campaign should have been filed with state

Uploaded: Mon, Mar 26, 2018, 5:20 pm

The recall of Judge Aaron Persky will be decided on by Santa Clara County voters when it appears on the June 5 ballot as planned after the state's 6th District Court of Appeal announced their denial of his appeal, according to the Recall Persky campaign.

Persky's history as a Superior Court judge became controversial after he handed down a six-month sentence to former Stanford University swimmer Brock Turner, who was convicted of the sexual assault of a woman after meeting her at a party on campus.

Persky filed an appeal on the grounds that the recall campaign should not have been filed with the Santa Clara County Registrar of Voters, but rather with the California Secretary of State because he believed that he was considered a "state officer," not a "local officer."

However, Administrative Justice Franklin Elia, Associate Justice Adrienne Grover and former Justice Wendy Clark Duffy, the trio who presided over the appellate hearing last Tuesday, disagreed and stated in their decision that they found "no procedural error and therefore must affirm the order."

The lawsuit appeared originally in front of retired San Francisco Judge Ksenia Tsenin in August 2017, at which time she lifted a temporary restraining order that Persky had filed that delayed the collection of signatures for his recall, according to the justices' court decision.

Tsenin rescinded the order, determining that the county's Registrar of Voters was the proper official to review and approve recall petitions for Superior Court judges and that "the recall petition submitted in this case was neither misleading nor inaccurate," the document states.

It was at that point that Persky filed his appeal.

The justices sided with the Recall Persky campaign, but also with Secretary of State Alex Padilla, who showed opposition to Persky's order, stating that the Registrar of Voters was the proper place to oversee the recalling of a Superior Court judge, who in fact was "a local officer."

"We are thankful that the Sixth District Court of Appeals sided with the voters and rejected Judge Persky's appeal to stop the recall collection," recall chair Michele Dauber said in a statement. "Judge Persky has proven time and time again that he will do anything he can to impede the rights of voters."

Dauber, a Stanford University professor, has spearheaded the recall campaign and the petition, which garnered over 94,000 signatures in order to bring the motion to the county's Board of Supervisors. The board approved adding the recall to the June ballot on Feb. 6.

The decision is coming just in time since the county's final printing date for the June ballot is April 3.

— Bay City News Service

Comments

member
Greenmeadow
on Mar 27, 2018 at 11:02 am
member, Greenmeadow
on Mar 27, 2018 at 11:02 am
15 people like this

The public should be upset, with the California legislature. They pass the laws and created a situation, where this judge sentenced the person. I don't agree with the sentence but society cannot blame the judge for the ruling. Instead the community should be upset that the legislature created the situation for a poor ruling. This Judge made a ruling based on the current law on the books. What should be changed is the law; not the Judge.


Barbara
Downtown North
on Mar 27, 2018 at 11:06 am
Barbara, Downtown North
on Mar 27, 2018 at 11:06 am
5 people like this

Rejecting Persky's appeal -- WHAT GOOD NEWS!!


Barron Park dad
Barron Park
on Mar 27, 2018 at 11:07 am
Barron Park dad, Barron Park
on Mar 27, 2018 at 11:07 am
6 people like this

Wonder how this upcoming vote is "polling" (I realize there are likely no polls on this very local matter).

I do agree that Judge Persky should stop stalling and allow the voters in June to voice their rights and their opinion on this matter.


Concerned
Another Palo Alto neighborhood
on Mar 27, 2018 at 12:39 pm
Concerned, Another Palo Alto neighborhood
on Mar 27, 2018 at 12:39 pm
15 people like this

I’m so tired of Dauber complaining that a judge turns to the courts. What a surprise....
She apparently thinks he and all voters should just do what she wants, no matter how wrong, irrational, unjust to him, and no matter how many low income men of color will now be slamed into prison under the indeterminate sentencing her zeal has already gotten passed. The resulting injustice will far outweigh any gain in justice for women.


A concerned community member
University South
on Mar 27, 2018 at 1:06 pm
A concerned community member, University South
on Mar 27, 2018 at 1:06 pm
8 people like this

I feel relieved that Judge Persky remains on June ballot. I hope there will be no more drama between now and June election. His effort to block the recall proved to be useless so far.

[Portion removed.]

Truth and virtue will prevail.


Dismayed
Another Palo Alto neighborhood
on Mar 27, 2018 at 1:40 pm
Dismayed, Another Palo Alto neighborhood
on Mar 27, 2018 at 1:40 pm
5 people like this

[Post removed due to same poster using multiple names]


the_punnisher
Registered user
Mountain View
on Mar 27, 2018 at 3:10 pm
the_punnisher, Mountain View
Registered user
on Mar 27, 2018 at 3:10 pm
Like this comment

[Portion removed.]

Judges have a responsibility to their community. They have the task of making a law fit the circumstances. To make the case for judges in the original discussions before our Federal Constitution was ratified, there were how judges should be handled in our new Republic. A decision was made:JUDGES SHALL INTERPRET THE LAW. No, that did not give them the power to make new law from the bench, only the way that existing law is to be enforced. They make sure a law is justly applied. This was applied to ALL MANKIND. It was later allowed the abolishment of " Jim-Crow " laws and " WHITES ONLY " signs. Lately, this type of ruling supported many AMERIND rights. Yes, our Republic has made many improvements but our Republic has a rocky ath to follow. I am just stating facts as I have learned them in my CIVICS coursework and what I have learned both in Amerind college coursework and the BIA. It pays to be informed before making a comment.
Oh, one last thing: JURY NULLIFICATION. Words feared by any judge. If you are on a jury and you feel a law is being applied unfairly or even against our Constitution, you have the freedom to personally NULLIFY a law. This is a start reminder of who is actually in control of all levels of government: WE THE PEOPLE!!!


Anon
Another Palo Alto neighborhood
on Mar 27, 2018 at 3:29 pm
Anon, Another Palo Alto neighborhood
on Mar 27, 2018 at 3:29 pm
9 people like this

Just as we are called upon to serve on juries and judge the facts of legal cases, so we are also called upon occasionally to judge judges. This is Judge Persky in a nutshell: Web Link


Jim
Registered user
Palo Alto Orchards
on Mar 27, 2018 at 4:47 pm
Jim, Palo Alto Orchards
Registered user
on Mar 27, 2018 at 4:47 pm
9 people like this

'sorry. I'm sticking with Judge P. He followed the law and sentencing guidelines. Why doesn't the Lw Prof seek to changed the law and sentencing procedures.


Anon
Another Palo Alto neighborhood
on Mar 27, 2018 at 5:14 pm
Anon, Another Palo Alto neighborhood
on Mar 27, 2018 at 5:14 pm
4 people like this

Posted by Jim, a resident of Palo Alto Orchards

>> 'sorry. I'm sticking with Judge P. He followed the law and sentencing guidelines. Why doesn't the Lw Prof seek to changed the law and sentencing procedures.

I guess you missed it-- the law -was- changed. I guess you only would recall a judge if he actually engaged in official misconduct? That is rather minimal. Sorry, I have a higher standard than that for a judge.


member
Greenmeadow
on Mar 27, 2018 at 5:37 pm
member, Greenmeadow
on Mar 27, 2018 at 5:37 pm
6 people like this

Voters should be more concerned about the California Legislature, that passed legislation allowing a judge to sentence a person. The Judge followed the law and sentencing guidelines that was passed by the Legislature and signed into law by a Governor. Instead of recalling the Judge voters should be pressuring the Legislature to correct the sentencing part of the law. This could happen again, and another Judge would probably sentence the person to the same sentence. Personally I didn't like the sentence handed down by the Judge. The person should have had a longer sentence. The fault is with the Legislature and Governor who signed the legislation allowing this type of sentence.


Anon
Another Palo Alto neighborhood
on Mar 27, 2018 at 6:12 pm
Anon, Another Palo Alto neighborhood
on Mar 27, 2018 at 6:12 pm
Like this comment

They did change the law:

Web Link


Stanford Alum
Downtown North
on Mar 28, 2018 at 5:59 pm
Stanford Alum, Downtown North
on Mar 28, 2018 at 5:59 pm
11 people like this

Judges are under explicit obligation to consider all factors specific to individuals in a case and to make a subjective call. Persky’s sentence of Turner was within the allowed for range (at the time).

Do we want judges to err on the side of compassion and focus our resources on education and prevention, or do we want judges to sentence at the maximum end of the allowed range? The answer for a forward-moving society should be pretty clear.

What few discuss: Persky sentenced Turner to a lifetime being labeled a sex offender. Hardly the definition of having gotten off easy.


Anon
Another Palo Alto neighborhood
on Mar 28, 2018 at 10:51 pm
Anon, Another Palo Alto neighborhood
on Mar 28, 2018 at 10:51 pm
Like this comment

Two similar but not identical posts. Still a few bugs in the system.

In any case, here is a different take on the case:

Web Link


David
Mountain View
on Mar 29, 2018 at 4:17 am
David, Mountain View
on Mar 29, 2018 at 4:17 am
2 people like this

The Court of Appeal's 3-0 decision/opinion is on its website. It resolves the issue of whether the statutes that indisputably assign to county election officials the handling of a recall of a state Superior Court judge in their counties is inconsistent with
State Constitutional provisions that merely identify Superior Court judges as state officers. The case resolves the issue for the entire State of California. Judge Persky and the San Jose law firm that represented him "pro bono" (for the public good and without charge) did the State a service by getting the issue decided in a published opinion binding throughout the State. Unless the California Supreme Court were to take up the issue by granting "review" within 40 days of the Court of Appeal's determination, the case will be over and voters will next consider the recall on its merits (or lack thereof).


Horrible actions
Adobe-Meadow
on Mar 30, 2018 at 6:44 am
Horrible actions, Adobe-Meadow
on Mar 30, 2018 at 6:44 am
10 people like this

Trump and his Trunmpaloompas seems to have inspired the pro-recallers. I find the actions to try and unseat a judge because of his decision on a case to be horrific. [Portion removed.]
Which judge is next? Lets keep kicking them all out whenever we don't agree.


Anon
Another Palo Alto neighborhood
on Mar 30, 2018 at 7:57 am
Anon, Another Palo Alto neighborhood
on Mar 30, 2018 at 7:57 am
2 people like this

Posted by Horrible actions, a resident of Adobe-Meadow

>> Trump and his Trunmpaloompas seems to have inspired the pro-recallers.

Curiously, Judge Persky has called upon Trump-associated resources to fight the recall, so I'm finding it difficult to understand what you mean. Web Link Care to post some sources so that I can understand what you mean?

[Portion removed due to deletion of referenced comment.]

>> Which judge is next? Lets keep kicking them all out whenever we don't agree.

It is quite difficult to unseat a judge, and it doesn't happen very often. And, if he does lose the election and his position, I'm sure he will be able to find work. We should all have such protections in our employment.


denisbill
Registered user
Meadow Park
on Mar 30, 2018 at 10:26 am
denisbill, Meadow Park
Registered user
on Mar 30, 2018 at 10:26 am
3 people like this

Do we want to make judges wrong in favor of compassion and focus on our resources on education and prevention, or do we want to be punished to the maximum extent of judicial boundaries? The answer for the forward-looking society should be very clear.
Web Link


Anon
Another Palo Alto neighborhood
on Mar 30, 2018 at 10:32 am
Anon, Another Palo Alto neighborhood
on Mar 30, 2018 at 10:32 am
Like this comment

Posted by denisbill, a resident of Meadow Park:

>> Do we want to make judges wrong in favor of compassion and focus on our resources on education and prevention, or do we want to be punished to the maximum extent of judicial boundaries?

I question the applicability of this "compassion vs punishment" dichotomy in this case. Please read this link:

Web Link

As they say in school, "compare and contrast" the sentences described in the linked article.


Jennis
Mayfield
on Mar 30, 2018 at 12:18 pm
Jennis, Mayfield
on Mar 30, 2018 at 12:18 pm
8 people like this

Can anyone tell me what the difference was between the sentencing for Brock Turner, and Todd Burpee, a Paly High graduate who received a 43 year sentence for attempting to rape a teenage girl?

The obvious difference is Todd is black, but that is a huge difference in sentencing which negates arguments posted above that the judge had no latitude in the sentencing of Brock Turner.

Web Link

You will see in the reactions posted above that there is a lot of support for Burpee's long sentence, even though he had not been in any previous trouble before and had extenuating traumatic experiences in his childhood.

There are a few differences in the crime, I know, but the slanting of the reporting exacerbates Todd's crime.

I knew Todd as a 2 year old, as I was his sister's teacher, so I am sad about what happened but I see a lot of racism and bias in the judges' sentencing of these two local young men.


@Jennis
Adobe-Meadow
on Mar 30, 2018 at 1:18 pm
@Jennis, Adobe-Meadow
on Mar 30, 2018 at 1:18 pm
16 people like this

What struck me first is that one was a crime against a child whereas the other's were adults, not to minimize either horrible act. I'm not sure, but I would expect there are harsher sentences for crimes against kids.

Regardless, I would NEVER cherry pick a decision as some reason to vote out a sitting judge. It completely undermines the idea of an independent judiciary, and I WANT my judges to be able to rule as they see, even when I wildly disagree with some rare cases.


Jim
Registered user
Old Palo Alto
on Mar 30, 2018 at 4:49 pm
Jim, Old Palo Alto
Registered user
on Mar 30, 2018 at 4:49 pm
Like this comment

When the character who made the "threat" call is caught(and he or she will be) anon appropriate penalties would be: Pay the full salaries and overhead of all of the cops who flocked to the scene, be denied access to any cell phone for a year, and write a public explanation of why he or she did this. His or her name should be made public by the person himself or herself.


Rolling Eyes
Jordan Middle School
on May 7, 2018 at 3:33 pm
Rolling Eyes, Jordan Middle School
on May 7, 2018 at 3:33 pm
3 people like this

[Post removed.]


George
Old Palo Alto
on May 8, 2018 at 10:20 am
George, Old Palo Alto
on May 8, 2018 at 10:20 am
Like this comment

[Post removed.]


Look forward
Stanford
on May 8, 2018 at 1:07 pm
Look forward, Stanford
on May 8, 2018 at 1:07 pm
2 people like this

To see the impact of this recall effort, ask yourself which populations are disproportionately charged with rape?

What will happen if a judge is recalled because he sentenced leniently, but within guidelines, for something that wasn’t rape?

Harsher sentences for these populations?

Hello!

This is identity politics, not democratic correction of an errant judge.


Don't miss out on the discussion!
Sign up to be notified of new comments on this topic.

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