Monday, August 11, 2003
Superior Court Judge Rejects Bid to Block Vote on Recalling Davis
By DAVID WATSON, Staff Writer
A Los Angeles Superior Court judge Friday denied a request for an injunction barring a gubernatorial recall vote until the qualifications of petition circulators have been verified.
The ruling, coming a day after the state Supreme Court rejected five petitions challenging aspects of the scheduled Oct. 7 election, appeared to end hopes of recall opponents that any pending state court litigation will block or delay voting—though at least two federal court challenges have been already been filed and new state court cases could still be brought.
Judge Carl J. West told recall opponents they had not shown the balance of harms favored blocking a vote sought by nearly 1.3 million voters who signed recall petitions.
“I am not going to enjoin this election,” West declared from the bench.
He offered to move the case to trial as quickly as possible—though probably not before the election—but said the taxpayer plaintiffs, objecting to the cost of an election based on a petition campaign they claimed was riddled with fraud, had not made the showing required to obtain a preliminary injunction.
“Disenfranchising the voters of this state would be a far greater harm than deferring and deciding this case in the ordinary course,” the judge said.
After the hearing at the Central Civil West courthouse, attorney Paul Kiesel of Kiesel, Boucher & Larson in Beverly Hills conceded the suit he filed seeking certification of a class of taxpayers who would have to bear the cost of the vote would not succeed in preventing the recall election from taking place.
“There will be a recall election,” Kiesel said.
He said he would continue to seek a ruling from “some court, sometime” that elections officials must verify that circulators of recall petitions are registered California voters. The Elections Code provides that only registered voters can circulate petitions, but under guidelines from the secretary of state only signatures of petitioners—not circulators—are verified against voter rolls.
Kiesel, calling the recall “the greatest single electoral crisis we have ever faced in this state,” told West at the hearing that failure to check the qualifications of circulators would amount to a message to other states to “bring your huddled masses” to California to earn money by collecting signatures. The lawsuit contends the petition campaign was conducted mostly by workers paid by the signature, many of them from outside the state.
Without verification, even children could be used to circulate petitions, Kiesel warned.
But West said criminal prosecution, not invalidation of petitions, is the “remedy the Legislature has chosen” under those circumstances.
“Those people should be prosecuted,” West said. “That’s what our law requires.”
The judge noted that Elections Code Sec. 9030(d) requires verification of petition signatures but no similar provision requires verifying circulator qualifications.
West chided Kiesel for simultaneously complaining about the cost to taxpayers of a recall election and urging that elections officials be required to do more verification.
“Being as concerned about taxpayer funds as you are, I would think you would not want to place that burden on elections officials, because it would be an intolerable burden,” the judge said.
Kiesel said the additional verification would be only “one more ministerial act” for registrars to perform. Without it, he argued, the criminal penalties would be an empty remedy, since identifying unregistered circulators would be impossible.
Registrar of Voters
But Senior Deputy County Counsel Judy W. Whitehurst, representing Los Angeles County Registrar of Voters Conny McCormack, said elections officials “would now become investigators” if circulator verification was required.
Whitehurst said some 60,000 pages of petitions had been filed in Los Angeles County. She noted that the plaintiffs had complained of circulators who were convicted felons or fraudulently registered to vote, as well as those who were simply unregistered.
West said Kiesel had also failed to show a likelihood of prevailing sufficient to support an injunction. The judge noted that the U.S. Supreme Court’s 1999 decision in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, held that requiring petition circulators to be registered voters is an unconstitutional restriction on free speech.
While Buckley dealt with an initiative measure, not a recall, the judge said its rationale “raises a serious question” as to the constitutionality of the circulator requirement.
Cases cited by Kiesel from other states had limited relevance because they did not involve preliminary injunctions, but were decided based on records including a “substantial evidentiary basis,” the judge said. Kiesel, he observed, had provided only “three declarations from circulators, two of which have been rebutted.”
“Your evidence is severely lacking here.”
Of the three specific instances of unregistered petition circulators cited by the anti-recall group in its moving papers, two involved petitions that proponents claim were never submitted. Recall sponsor Ted Costa filed a declaration saying that the petitions circulated by the two—Edward Garrett and Kim Dickson—were screened out before the petitions were turned in, and his lawyers said at the hearing they had those petitions with them and were willing to give them to West for in camera inspection.
West declined that offer.
Attorney Keyvan Davoudian of Pillsbury Winthrop in Los Angeles, representing Costa, noted that the remaining declaration, by William Byrd, did not actually assert that he turned in any petitions.
The plaintiffs won a procedural victory when West agreed to allow the case to survive in its current form and remain in Los Angeles. The judge had issued an order to show cause why it should not be deemed an petition for a writ of administrative mandamus directed at the secretary of state, for which venue would be proper only in Sacramento under Elections Code Sec. 13314.
West said he agreed the plaintiffs had the option to bring their complaint as one for declaratory and injunctive relief and to seek certification as a class action.
The judge set a Sept. 2 status conference and said he would set a trial date then. He told Kiesel a trial date before Oct. 7 was “not possible,” but moments later called it merely “unlikely.”
“Anything’s possible,” West said. He also noted that seeking class certification would probably involve some delay, and suggested Kiesel might wish to consider dropping that aspect of the suit.
Copyright 2003, Metropolitan News Company