Metropolitan News-Enterprise


Monday, July 21, 2003


Page 3


Appeals Court, Superior Court Rebuff Efforts to Block Davis Recall


From Staff and Wire Service Reports


Two courts—the Third District Court of Appeal and the Los Angeles Superior Court—Friday rebuffed moves aimed at blocking or delaying certification of a recall election for Gov. Gray Davis.

Certification could come as early as next week, though an attorney in the local case told the METNEWS he planned to file a writ petition today with this district’s Court of Appeal challenging the judge’s denial of a temporary restraining order.  The order sought by Paul Kiesel of Kiesel, Boucher & Larson would have barred Secretary of State Kevin Shelley from certifying the election.

Kiesel told Superior Court Judge Carl J. West he was making a last-ditch effort to ensure his claims that recall petitions were illegally circulated by non-voters would receive a hearing before the election is scheduled, arguing that the “train will have left the station” once that occurs.

But West said he didn’t think a TRO was necessary, noting that on Wednesday he had set an Aug. 8 hearing on Kiesel’s request for a preliminary injunction.

“I don’t see the urgency in this,” the judge declared, suggesting that even if—as Kiesel predicted—Shelley certifies soon after a July 23 deadline for county registrars to submit counts of verified petition signatures that the recall has qualified for the ballot, that would not prevent an injunction which would require examination of the qualifications of petition circulators.

West also strongly indicated skepticism about the merits of the recall opponents’ claim.  He noted that the U.S. Supreme Court in Buckley v. American Constitutional Law Foundation (1999) 525 U.S. 182 held requiring petition circulators to be registered voters is an unconstitutional restriction on free speech.

He also pointed out that a “whole statutory scheme” provides for criminal prosecution of unqualified circulators, but does not say the petitions they circulate are invalid.

“What about the million and a half people who signed these petitions?” the judge asked.

Recall proponents and opponents differed over the significance of an alternative writ of mandate issued Friday by the Third District Court of Appeal.

Presiding Justice Arthur Scotland, joined by Justices Richard Sims III and Ronald B. Robie, said Shelley’s instructions to counties were erroneous when he gave them an extra 30-day period to verify signatures rather than doing so immediately.  The court ordered Shelley to tell counties to simultaneously count and verify signatures or to tell the court by Thursday why he had not done so.

The justices set a hearing on the matter for July 31.

Recall forces hailed the action as a victory, but Shelley’s office issued a statement describing it as “a routine procedural device.” The secretary of state believes the advice he has given is correct and plans to defend it in court, the statement declared.

   If counties report enough valid signatures on petitions circulated by GOP-led organizations, Davis could become the first California governor ever to face the electorate on a recall ballot.

   Davis opponents want a recall election held this fall rather than consolidating it with the next scheduled statewide election in March, when a larger Democratic turnout would be expected because of California’s presidential primary.

   Recall advocates claim they have turned in 1.6 million signatures to counties and hope the counties will have validated enough signatures to have Shelley certify a recall election on Wednesday; they need 897,158 valid signatures to get the recall on the ballot.

   Under Shelley’s instructions, counties only have to report raw signature totals on Wednesday and they would have until Aug. 22 to report totals of valid signatures.

   It has not been clear that counties would complete the verification by Wednesday. Los Angeles County Registrar of Voters Conny McCormack, for example, had declined to predict whether she would finish. McCormack did not immediately return a call seeking comment left with the county press office Friday.


Copyright 2003, Metropolitan News Company