Monday, April 22, 2002
C.A. Rejects Losing Candidate’s Challenge to Governor’s Race Results
By KENNETH OFGANG, Staff Writer/Appellate Courts
Gray Davis and Bill Simon were legally nominated for governor at last month’s primary, the Fourth District Court of Appeal ruled Friday.
Div. Three rejected an appeal by Nick Jesson, an also-ran in the Republican primary. The Fountain Valley businessman insisted that the primary victories of Davis and Simon were invalid because they failed to swear that they were not, and had not for the last five years been, members of an organization that advocates the violent overthrow of the government.
The state Constitution purports to require such an oath.
A ruling for Jesson would “throw the California gubernatorial race into utter chaos,” Presiding Justice David Sills wrote for the panel, which ruled after hearing brief argument earlier in the day.
Jesson, an avowed conservative who ran on an anti-tax, anti-abortion, pro-gun platform, received 17,281 votes. He represented himself in challenging the nominations of Simon, whose vote total was 1,012,428, and Davis, who was re-nominated by the Democrats with 1,589,113 votes.
Prior to 1967, Sills explained, the official form containing the oath of candidacy required by Elections Code Sec. 200 included the language of Art. XX, Sec. 3 of the state Constitution. The Secretary of State’s Office dropped the language, however, after the state Supreme Court ruled in Vogel v. County of Los Angeles (1967) 68 Cal.2d 18 that that portion of the oath violated the federal Constitution.
As a result, Sills noted, it appears that no gubernatorial candidate had sworn the oath from the time of Ronald Reagan’s reelection in 1970 until Jesson, filing for this year’s contest, typed in and swore to the stricken language.
Point of Agreement
“Although the Governor and his challenger disagree on many issues, on one point they agree—this is a frivolous lawsuit,” the presiding justice wrote. “And, they are right. In light of Vogel, there was absolutely no need for a formal trial on Jesson’s contest. The court had the power to dismiss it based on its prima facie legal insufficiency.”
Sills acknowledged that Vogel, and the two U.S. high court decisions on which it was based, involved government employees rather than elected officials. “But nothing in those cases supports a distinction between non-elected and elected state employees,” he said, noting that the Supreme Court had earlier struck down an Oklahoma loyalty oath that applied to both officeholders and employees.
“It is very clear, then that paragraph 2 of the oath as stated in the California Constitution cannot be required of anyone to become Governor of California or even to get a library card,” Sills wrote. “End of discussion.”
Jesson said he would take his case to the state Supreme Court “for the safety and future of our children.” He added that it was “very possible” that Davis and Simon are or were members of subversive organizations.
He said that he “doesn’t want to create chaos” and would drop his challenge if Davis and Simon file the oath.
Simon’s attorney, Eric Grant of Sacramento’s Sweeney & Grant, said he had never asked his client, a wealthy capitalist, whether he had belonged to any subversive organization. “But somehow I doubt it,” he told the METNEWS.
The governor’s attorney, Thomas A. Willis of the San Leandro office of Remcho, Johansen & Purcell, was not available for comment.
The case is Jesson v. Davis, G030498.
Copyright 2002, Metropolitan News Company