Thursday, July 17, 2003
Judge Denies Expedited Discovery, Quick Hearing in Recall Suit
By DAVID WATSON, Staff Writer
A Los Angeles Superior Court judge yesterday denied requests for expedited discovery and a quick hearing in a suit seeking to challenge the legality of petitions circulated to recall Gov. Gray Davis.
Judge Carl J. West declined to set a hearing date prior to July 23, when county registrars are scheduled to send verified recall petitions to Secretary of State Kevin Shelley.
“I’m not convinced at this point that there is a sky-is-falling litany of problems we’re going to be facing here,” West told attorneys who filed a complaint Tuesday. They are seeking class action certification and claiming recall petitions were circulated by out-of-state residents who were not registered to vote, as required by Elections Code Secs. 102, 11045, and 11046, or who registered to vote fraudulently.
West also rebuffed requests to permit the plaintiffs in the suit to immediately begin issuing subpoenas and taking depositions of circulators. Lawyers for Taxpayers Against the Governor’s Recall, a recall opponent group, claimed circulators are leaving the state and may become difficult to locate and depose.
The judge said he didn’t “see the exigency” claimed by the plaintiffs, and added he had “significant concerns about the propriety of class action” as a vehicle for their claims. West strongly suggested that since the plaintiffs are seeking an order requiring the secretary of state to instruct registrars to check the qualifications of petition circulators, their filing should be construed as a request for a writ of administrative mandamus, for which venue would be proper only in Sacramento under Elections Code Sec. 13314.
The judge set an Aug. 8 hearing on orders to show cause why the questions of venue and appropriate form of action should not be resolved adversely to the plaintiffs.
Plaintiffs’ attorney Paul R. Kiesel of Kiesel, Boucher & Larson in Beverly Hills told reporters after the hearing he was disappointed not to have won a quicker hearing and discovery authorization.
“Before the rats flee the ship we want to trap them and take their depositions,” Kiesel declared.
Kiesel said the plaintiffs’ attorneys would consider asking West for a temporary restraining order to block registrars from transmitting petitions by the July 23 deadline. Otherwise, he said, if the secretary of state finds sufficient signatures have been verified, the lieutenant governor would be forced to set an election date.
Challenging the circulators’ qualifications could then become more difficult, the lawyer said.
Attorney Charles Bell Jr. of Bell, McAndrews & Hiltachk in Sacramento, appearing for recall proponent and proposed intervenor Ted Costa, told West in court that he planned to file a petition today with the California Judicial Council seeking coordination of lawsuits filed by both recall advocates and opponents before a single judge. Kiesel conceded after the hearing that a “mass coalescing” of actions was likely.
In addition to challenging the qualifications of circulators, the complaint before West alleges that though petitions require certification, under penalty of perjury, that the circulators witnessed the signatures, the certifications were often “pre-signed” and many petitions were left unattended at supermarkets, drug stores, government offices and other businesses for signature. It names Shelley, Los Angeles County Registrar of Voters Conny McCormack, and registrars in Orange and San Diego counties as defendants.
The complaint contains four pages of photographs of purportedly unattended or pre-signed petitions, which West said he found “unusual and impressive, but we expect nothing less from Mr. Kiesel.”
The case was randomly assigned to West by Supervising Judge Peter D. Lichtman after Judge Charles W. McCoy, who normally makes the assignments, recused himself. McCoy, who gave no explanation for the recusal, was an aide to Republican Matt Fong when Fong was a member of the State Board of Equalization.
Copyright 2003, Metropolitan News Company