Wednesday, October 14, 2009
Court Throws Out Fee Award in Carson Mayoral Recall Effort
Ruling Clarifies Voters’ Rights to Withdraw Signatures From Ouster Petition
By SHERRI M. OKAMOTO, Staff Writer
This district’s Court of Appeal yesterday threw out a $78,000 attorney fee award in favor of the proponents of an effort to recall Carson Mayor James L. Dear, which was based on Los Angeles Superior Court Judge Rolf M. Treu’s determination that various voter requests to withdraw their signatures from the recall petition were invalid.
Div. Five clarified that a voter’s request to withdraw a signature from a recall petition is effective, without regard to the date the voter signed the petition, as long as the request is filed with the appropriate election official before the petition is filed.
In 2007, Carson Citizens for Reform presented a recall petition to City Clerk Helen S. Kawagoe. The citizens’ group, backed by four former mayors, claimed, among other things, that the mayor’s support for development has heightened the city’s traffic problems.
The clerk determined that the petition contained 12,164 signatures. However 5,842 voters made requests to withdraw their signatures, and approximately 100 of them had signed the petition after filing their withdrawal requests.
The petition and withdrawal requests were transmitted to then-County Registrar-Recorder Conny B. McCormack. Of the 5,842 withdrawal requests, 868 were verified to match signatures on the petition and those signatures were withdrawn from the petition, leaving 8,590 verified signatures—86 less than the number required to qualify the petition.
Carson Citizens for Reform later sent a list of signatures they claimed were improperly excluded or withdrawn to the clerk, who submitted the list to the registrar.
Clerk Sues Registrar
After the register declined to review the list, the clerk filed suit against the registrar seeking a declaration of their respective duties to review the disputed signatures and withdrawal requests. Carson Citizens for Reform and the mayor were among those named real parties in interest.
The organization filed a cross-complaint against the clerk, registrar and mayor seeking a declaration that the signature withdrawal requests were invalid because such requests require a declaration of circulator under Elections Code Sec. 104 and that Sec.103 requires a withdrawal request to be signed after the voter signs the petition.
Treu agreed with these interpretations of Secs. 103 and 104 and issued a peremptory writ of mandate ordering the clerk to certify the recall petition as sufficient. He also found that the organization was the prevailing party and awarded attorney fees of $78,897.
A recall election was held in September 2008 but the mayor was not recalled.
Justice Sandy Sandy R. Kriegler explained for the appellate court yesterday that the election did not render the registrar’s appeal moot as to the portion of the judgment providing declaratory relief because the propriety of that ruling was determinative of the attorney fee issue.
“Even were we to conclude that the appeal from the judgment is moot, the election law issues presented in this case are of broad importance and capable of recurring, and therefore, we would exercise our discretion to resolve the issues on the merits,” the justice added.
Turning to the merits of the appeal, Kriegler emphasized that the Elections Code sections addressing withdrawal only require that a voter’s request to withdraw his signature be made in writing before the petition bearing his signature is filed.
“Whether the petition is signed before or after the withdrawal request is not a consideration under the plain language of the statute, as long as the request is filed prior to the date that the petition is filed,” he said.
Kriegler further concluded that a withdrawal request does not require the declaration of a circulator under Sec.104.
As the relevant Elections Code sections do not refer to a withdrawal request as a “petition” or a “paper” for which Sec. 104 would require a the declaration of circulator, none of the sections providing for petitions or papers refer to withdrawal requests, and “it would be nonsensical to require a declaration of circulator be attached to requests that are filed by a voter and not subject to circulation,” Kriegler said the trial court’s interpretation of Sec. 104 was incorrect.
Because the withdrawal requests were not invalid and the recall petition was therefore insufficient, Carson Citizens for Reform was not a prevailing party in the trial court entitled to an award of attorney fees, Krigler added.
Although the city clerk had not appealed the trial court’s judgment or raised any issues concerning statutory interpretation, Kriegler—joined by Presiding Justice Paul Turner and Justice Richard M. Mosk—said the “aspects of the judgment that affect the attorney fee order are so intertwined that we must reverse the order awarding attorney fees as to both the Registrar and the Clerk in the interests of justice.”
William W. Wynder and Douglas P. Haubert of Aleshire & Wynder represented the city clerk while Senior Deputy County Counsel Patrice J. Salseda represented the county recorder. Christopher Sutton of the Law Offices of Christopher Sutton represented Carson Citizens for Reform.
Sutton said he had not yet heard from his client how it would like to proceed, but he criticized yesterday’s ruling as ‘in effect allow[ing] elected officials to immunize themselves from recall petitions by gathering these so-called withdrawal cards months or years in advance, as the mayor of Carson did, and turn them in only when a recall petition is filed.”
He also referenced AB 1134, by Assemblyman Tony Mendoza, D-Norwalk, which was signed into law Sunday, which explicitly provides that a voter’s written request to withdraw his signature from a recall petition is not a petition or paper requiring a declaration of circulator. A similar bill was vetoed last year by the governor.
“If the law needed amending, that means we were right two years ago,” Sutton insisted, lamenting that the passage of AB 1134 and yesterday’s decision will “open up an industry in fraudulent withdrawal card gathering” since withdrawal cards are “entirely unregulated now.”
The “one silver lining,” Sutton said, was that yesterday’s decision only applies to recall petitions and not all withdrawal cards.
Fred Huebscher, who served as Dear’s campaign consultant in the recall election, commented that yesterday’s ruling “came a year too late,” since the citizens of Carson “had to pay hundreds of thousands of dollars for an election that shouldn’t have happened” and “wasted countless hours of city resources.”
The case is Carson Citizens for Reform v. Kawagoe, B209424.
Copyright 2009, Metropolitan News Company