Davis Recall Opponents Ask Court of Appeal for Writ

Tuesday, July 22, 2003

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Davis Recall Opponents Ask Court of Appeal for Writ

By DAVID WATSON, Staff Writer

Opponents of the effort to recall Gov. Gray Davis yesterday asked this district’s Court of Appeal to overturn a judge’s decision not to block Secretary of State Kevin Shelley from certifying results of the petition campaign.

Superior Court Judge Carl J. West Friday rebuffed a bid by attorney Paul Kiesel of Kiesel, Boucher & Larson in Beverly Hills for a temporary restraining order. Kiesel and other attorneys representing Taxpayers Against the Governor’s Recall have sought certification of a class action on behalf of California voters and taxpayers, alleging that recall petitions were illegally circulated by non-voters who frequently left the petitions unattended instead of witnessing the signatures, as required by state law.

The writ petition filed yesterday asks the appellate court to stay certification of the recall until those claims can be resolved. West has set an Aug. 8 hearing on the recall opponents’ request for a preliminary injunction.

By the time of that hearing, the writ petition declares, “counties may already be gearing up for a special election” and incurring related expenses. The recall opponents say that if county registrars of voters have verified enough petition signatures by Wednesday’s reporting deadline, Shelley will be required under the Elections Code to certify that an election is required.

In denying the TRO, West cited the U.S. Supreme Court’s 1999 decision in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182. The court in Buckley held that requiring petition circulators to be registered voters is an unconstitutional restriction on free speech.

But in their writ petition the recall opponents argue that the Buckley court “expressly upheld the right of a state to require circulators to provide a valid residence address so that they can be located if need be.”

The petition declares:

“The Legislature insisted that the circulators put down their true residence address-as opposed to a motel room obtained for them by the firm that bused them in-so that when allegations surface of the sort at issue here, it is possible to get to the bottom of them.”

The opponents also note, as they did Friday before West, that Buckley involved an initiative measure, not a recall.

“[R]ecall proponents have available to them avenues that are closed to the proponents of an initiative: periodic elections, term limits, and even impeachment,” the petition argues. “Thus, the interests of both the state and the proponents are different in the recall setting, something which was neither argued nor even before the Court in Buckley.”

In his order denying relief, West also cited Truman v. Royer (1961) 189 Cal.App.2d 240, for the principle that registrars are required to count signatures even if circulators are not registered voters. The opponents’ writ petition argues that Truman was distinguished by the Court of Appeal in 1994 when it upheld, in Browne v. Russell, 27 Cal.App.4th 1116, a Los Angeles City Charter provision that prohibited the city clerk from counting signatures collected by circulators who were not registered voters.

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.