News

Attorney general sides with Recall Persky campaign in legal challenge

New judge appointed to hear case next week

The state's top lawyer weighed in Tuesday on a legal battle between Santa Clara County Judge Aaron Persky and the group working to unseat him, intervening on behalf of the recall campaign.

In an emergency application for intervention filed in Santa Clara County Superior Court in San Jose Tuesday morning, California Attorney General Xavier Becerra urged the court to reject claims recently made by the embattled judge in an effort to block his opposition from gathering the signatures required to place the measure on the June 2018 ballot.

Persky two weeks ago won an injunction that temporarily blocked the recall campaign from collecting signatures. He challenged the recall campaign's petition, which had been approved by the Santa Clara County Registrar of Voters the day before, on the grounds that the secretary of state, rather than the registrar, should oversee the recall, and that the replacement for a recalled judge should be appointed by the governor rather than elected.

Becerra, who represents the secretary of state, rejected both of those arguments on Tuesday.

Persky's legal challenge "may impair and impede" Secretary of State Alex Padilla's responsibility to enforce election laws as the "chief elections officer" for California, the legal filing argues.

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"The Secretary has an unquestionable interest in defending the constitutional and statutory provision at issue in this case. No other party shares the Secretary's unique interests in the ramifications that the claims in this case may have for the State's election laws and recall procedures," the filing states.

Persky's petition "seeks to impose" on the secretary of state "new administrative duties and responsibilities regarding recall of superior court judges that the Secretary has never performed, and that the Elections Code vests with county election officials, not the Secretary," Becerra wrote.

James McManis of McManis Faulkner, the law firm representing Persky, told the Weekly Tuesday that his firm has not yet taken a position on the the attorney general's action.

"The attorney general is just another lawyer," McManis said. "As far as I'm concerned, and I'm sure Judge Persky shares this feeling, everybody is entitled to their day in court. That's what we're exercising and I think if the secretary of state wants to be heard, (he) ought to be heard."

Michele Dauber, the Stanford University law professor chairing the recall campaign, said she was "relieved" that the attorney general weighed in.

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She characterized Persky's legal action as a stalling tactic to avoid the recall election. The county has told her that if the recall campaign cannot start gathering signatures before Sept. 1, the measure will have to be placed on the November 2018 rather than June 2018 ballot.

She also questioned the timing of Persky's petition, which came more than a month after the recall campaign filed its notice of intent to circulate a recall petition and Persky filed his own ballot statement with the county.

On Friday, the recall campaign filed an objection against a retired Orange County judge brought on to hear the case, Laird Carter, alleging her approval of Persky's temporary restraining order amounted to "prior restraint of protected First Amendment speech without any finding of a compelling government interest."

All Santa Clara County judges have recused themselves from the case.

Late Tuesday afternoon, a new judge was appointed to oversee the legal challenge. Kay Tsenin, a San Francisco judge, will now hear the case on Monday, Aug. 28, according to McManis.

Dauber launched the effort to unseat Persky following his widely criticized sentencing of former Stanford student Brock Turner, who was convicted of sexually assaulting an unconscious woman on campus in 2015. Turner was released on good behavior after serving half of the six-month sentence in county jail.

Related content:

Storify: Inside the Brock Turner case

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Attorney general sides with Recall Persky campaign in legal challenge

New judge appointed to hear case next week

by / Palo Alto Weekly

Uploaded: Tue, Aug 22, 2017, 5:40 pm

The state's top lawyer weighed in Tuesday on a legal battle between Santa Clara County Judge Aaron Persky and the group working to unseat him, intervening on behalf of the recall campaign.

In an emergency application for intervention filed in Santa Clara County Superior Court in San Jose Tuesday morning, California Attorney General Xavier Becerra urged the court to reject claims recently made by the embattled judge in an effort to block his opposition from gathering the signatures required to place the measure on the June 2018 ballot.

Persky two weeks ago won an injunction that temporarily blocked the recall campaign from collecting signatures. He challenged the recall campaign's petition, which had been approved by the Santa Clara County Registrar of Voters the day before, on the grounds that the secretary of state, rather than the registrar, should oversee the recall, and that the replacement for a recalled judge should be appointed by the governor rather than elected.

Becerra, who represents the secretary of state, rejected both of those arguments on Tuesday.

Persky's legal challenge "may impair and impede" Secretary of State Alex Padilla's responsibility to enforce election laws as the "chief elections officer" for California, the legal filing argues.

"The Secretary has an unquestionable interest in defending the constitutional and statutory provision at issue in this case. No other party shares the Secretary's unique interests in the ramifications that the claims in this case may have for the State's election laws and recall procedures," the filing states.

Persky's petition "seeks to impose" on the secretary of state "new administrative duties and responsibilities regarding recall of superior court judges that the Secretary has never performed, and that the Elections Code vests with county election officials, not the Secretary," Becerra wrote.

James McManis of McManis Faulkner, the law firm representing Persky, told the Weekly Tuesday that his firm has not yet taken a position on the the attorney general's action.

"The attorney general is just another lawyer," McManis said. "As far as I'm concerned, and I'm sure Judge Persky shares this feeling, everybody is entitled to their day in court. That's what we're exercising and I think if the secretary of state wants to be heard, (he) ought to be heard."

Michele Dauber, the Stanford University law professor chairing the recall campaign, said she was "relieved" that the attorney general weighed in.

She characterized Persky's legal action as a stalling tactic to avoid the recall election. The county has told her that if the recall campaign cannot start gathering signatures before Sept. 1, the measure will have to be placed on the November 2018 rather than June 2018 ballot.

She also questioned the timing of Persky's petition, which came more than a month after the recall campaign filed its notice of intent to circulate a recall petition and Persky filed his own ballot statement with the county.

On Friday, the recall campaign filed an objection against a retired Orange County judge brought on to hear the case, Laird Carter, alleging her approval of Persky's temporary restraining order amounted to "prior restraint of protected First Amendment speech without any finding of a compelling government interest."

All Santa Clara County judges have recused themselves from the case.

Late Tuesday afternoon, a new judge was appointed to oversee the legal challenge. Kay Tsenin, a San Francisco judge, will now hear the case on Monday, Aug. 28, according to McManis.

Dauber launched the effort to unseat Persky following his widely criticized sentencing of former Stanford student Brock Turner, who was convicted of sexually assaulting an unconscious woman on campus in 2015. Turner was released on good behavior after serving half of the six-month sentence in county jail.

Related content:

Storify: Inside the Brock Turner case

Comments

Stanford Professor
Stanford
on Aug 22, 2017 at 6:41 pm
Stanford Professor, Stanford
on Aug 22, 2017 at 6:41 pm
16 people like this

Prediction. The presiding judge will have empathy and rule in Judge Perky's favor. These judges are also part of a professional social network and to blackball one's colleague will create further divisiveness and adversely effect various friendships.

It's time to move on. There is no 'rape culture' at Stanford. Just an occasional example of poor judgement on the part of certain individuals.

The student was expelled. Done deal.




No-Recall-Needed
Another Palo Alto neighborhood
on Aug 22, 2017 at 9:11 pm
No-Recall-Needed, Another Palo Alto neighborhood
on Aug 22, 2017 at 9:11 pm
10 people like this

Attorney General Xavier Becerra is a life-long Democrat, so it stands to reason that he would oppose a Republican judge. [Portion removed.]

At any rate, as the poster above points out, there is no demonstrable "rape culture" at Stanford, and this who episode needs to be put behind us.



Gary
Mountain View
on Aug 22, 2017 at 9:24 pm
Gary, Mountain View
on Aug 22, 2017 at 9:24 pm
44 people like this

The first poster, calling himself 'Stanford Professor," is a prime example of the rape culture. If a student uses "poor judgment," rapes another student and gets caught, he is to only be expelled. "Done deal."


M. Driscoll
Barron Park
on Aug 22, 2017 at 10:19 pm
M. Driscoll, Barron Park
on Aug 22, 2017 at 10:19 pm
Like this comment

[Post removed.]


Victim Blaming ^^^^^^^
Crescent Park
on Aug 22, 2017 at 10:27 pm
Victim Blaming ^^^^^^^, Crescent Park
on Aug 22, 2017 at 10:27 pm
3 people like this

[Post removed due to deletion of referenced comment.]


BP neighbor
Barron Park
on Aug 23, 2017 at 12:28 pm
BP neighbor, Barron Park
on Aug 23, 2017 at 12:28 pm
31 people like this

Thank you Michele & all those who are working on this important issue.


1drin
Registered user
Charleston Meadows
on Aug 23, 2017 at 12:40 pm
1drin, Charleston Meadows
Registered user
on Aug 23, 2017 at 12:40 pm
27 people like this

Stanford "professor" - No rape culture, eh? Just the old boys network helping each other out and brushing aside each other's little indiscretions, like giving a slap on the wrist to a proven rapist. Well... after all, it's only a rape, right? And it's just a woman. Like you say, done deal.


Novelera
Registered user
Midtown
on Aug 23, 2017 at 12:44 pm
Novelera, Midtown
Registered user
on Aug 23, 2017 at 12:44 pm
32 people like this

I am sick and tired of Persky's lawyers cooking up schemes to avoid the recall vote. He is an elected official, and an up or down vote on his continuance in his post should be up to the voters. It is true that a lot of his colleagues on the bench are sticking up for him as well as some law school professors. There was an excellent commentary in favor of allowing the recall vote to happen was in the San Francisco Chronicle: Web Link

If Persky is so sure he did the right thing, why is he so afraid of facing the voters?


Anon
Another Palo Alto neighborhood
on Aug 23, 2017 at 1:08 pm
Anon, Another Palo Alto neighborhood
on Aug 23, 2017 at 1:08 pm
23 people like this

The above posts illustrate why this recall is wrongheaded. It's about name calling and overriding emotion and assertions there is only bias and no rule of law. That the desire for Justice can only be satiated through recall of this single judge. That the justice sytem is wholly bankrupt. That no judge could ever rule against one of their own. That a rape culture has taken over Stanford.
Since you all feel this way, let's just get rid of all judges. I can't imagine why you want any at all given what you say here.


Novelera
Registered user
Midtown
on Aug 23, 2017 at 2:55 pm
Novelera, Midtown
Registered user
on Aug 23, 2017 at 2:55 pm
30 people like this

@anon. Please exclude me from your blanket denunciation of commenters on the Persky recall effort. I did not write about rape culture nor emotionally castigate Persky. My comment stated that, since a significant number of the voters in Santa Clara County don't approve of his verdicts, then the process should be played out. If the recall fails, then I'll live with the result. I am objecting to Persky's attorneys' trying to thwart efforts to even get this on the ballot.


Ethel Kasinsky
Old Palo Alto
on Aug 23, 2017 at 6:12 pm
Ethel Kasinsky, Old Palo Alto
on Aug 23, 2017 at 6:12 pm
19 people like this

Leave the judge alone. He is a good man, husband and father.

While any judicial decision will have its naysayers, Judge Persky took all of the facts into consideration.

This is almost like saying that certain Associate Justices of the Supreme Court should be subject to recall in the event of a controversial decision and there have been many.

We must accept those we entrust to make the call.


He's a good kid
Community Center
on Aug 23, 2017 at 9:51 pm
He's a good kid, Community Center
on Aug 23, 2017 at 9:51 pm
27 people like this

@ethel he's not running for man husband or father. He's running for judge and he's terrible at that. That's the electoral process. Mitt Romney was a good man husband and father but I didn't want him to be President. See the difference?


The Neutral Zone
Crescent Park
on Aug 24, 2017 at 9:58 am
The Neutral Zone, Crescent Park
on Aug 24, 2017 at 9:58 am
3 people like this

QUOTE: "This is almost like saying that certain Associate Justices of the Supreme Court should be subject to recall in the event of a controversial decision and there have been many."

1857 Supreme Court - Scott vs Sanford. Perhaps the worst judicial decision in the history of the United States court system.

Would the 'Dauberites' and various outraged Palo Altans be clamoring for the removal of the 7 justices who ruled in favor of Sanford?

In those days, there was a 'slave culture' and it was real.



Just Thinking
Midtown
on Aug 24, 2017 at 11:43 am
Just Thinking, Midtown
on Aug 24, 2017 at 11:43 am
8 people like this

If the accused was found guilty (which he was), wouldn't the alleged victim have a justifiable case in civil court to recover certain damages (i.e. medical expenses, emotional trauma et al)?

Or is 'Jane Doe's' case a relatively weak one?


Fair Play
Duveneck/St. Francis
on Aug 24, 2017 at 2:32 pm
Fair Play, Duveneck/St. Francis
on Aug 24, 2017 at 2:32 pm
2 people like this

Novelera, you say "If Persky is so sure he did the right thing, why is he so afraid of facing the voters?" Afraid? Really? [Portion removed.]

However, this recall campaign is an entirely different situation. [Portion removed.] I'd welcome a fair debate, without the propaganda and distortions so evident to date.

[Portion removed.] I don't blame Judge Persky and his lawyers for using his rights as a citizen to ask the courts to examine the legal issues involved. [Portion removed.]


Novelera
Registered user
Midtown
on Aug 24, 2017 at 3:50 pm
Novelera, Midtown
Registered user
on Aug 24, 2017 at 3:50 pm
6 people like this

Fair Play: Did you read the web link I included that had an opinion by a Stanford law professor. This guy was much better at explaining why Persky needs to face the voters again than my comment. That's why I included it.


Blame the Alcohol
Atherton
on Aug 25, 2017 at 9:59 am
Blame the Alcohol, Atherton
on Aug 25, 2017 at 9:59 am
3 people like this

Judge Persky obviously did not want to over-punish the lad for his youthful indiscretion. Since alcohol was also involved, a overall sense of restraint was impaired preceding and during this unfortunate incident.

The fraternity should also have been punished since it was the host environment serving the alcohol. Their charter should have been revoked as well.


mauricio
Embarcadero Oaks/Leland
on Aug 25, 2017 at 1:17 pm
mauricio, Embarcadero Oaks/Leland
on Aug 25, 2017 at 1:17 pm
3 people like this

Since when is alcohol consumption an excuse for committing a felony? Should young drunk drivers who caused a fatal accident by running a red light get away with a slight slap on the wrist, AKA 3 months in county jail for "youthful indiscretion"?


Blame the Alcohol
Atherton
on Aug 25, 2017 at 6:16 pm
Blame the Alcohol, Atherton
on Aug 25, 2017 at 6:16 pm
1 person likes this

> Since when is alcohol consumption an excuse for committing a felony?

Not an exemption but a factor taken into consideration in certain cases.


Illuminato
another community
on Aug 25, 2017 at 6:47 pm
Illuminato, another community
on Aug 25, 2017 at 6:47 pm
1 person likes this

There she stood in the street
Smiling from her head to her feet
I said hey, what is this
Now baby, maybe she's in need of a kiss
I said hey, what's your name baby
Maybe we can see things the same
Now don't you wait or hesitate
Let's move before they raise the parking rate

All right now baby, it's all right now
All right now baby, it's all right now

I took her home to my place
Watching every move on her face
She said look, what's your game baby
Are you tryin' to put me in shame
I said slow don't go so fast
Don't you think that love can last
She said love, Lord above
Now you're tryin' to trick me in love

All right now baby, it's all right now
All right now baby, it's all right now

The lyrics to the Stanford U. fight song "All Right Now" by Free.


Mom
Fairmeadow
on Aug 26, 2017 at 6:05 am
Mom, Fairmeadow
on Aug 26, 2017 at 6:05 am
Like this comment

"Trump Pardons Former Sheriff Joe Arpaio, Who Illegally Targeted Latinos" (Huffpost)

Maybe Judge Persky is way much smarter than the rest of us, more than we thought.



A PA Parent
College Terrace
on Aug 26, 2017 at 10:57 am
A PA Parent, College Terrace
on Aug 26, 2017 at 10:57 am
2 people like this

While Brock Turner's actions were reprehensible, I would have serious concerns (and afterthoughts) about my 23 year-old daughter passed out near a dumpster after overindulging at a fraternity party. As a young adult, she also has certain individual responsibilities pertaining to her well-being and safety.


Peers Parent
Registered user
Evergreen Park
on Aug 27, 2017 at 10:47 pm
Peers Parent, Evergreen Park
Registered user
on Aug 27, 2017 at 10:47 pm
9 people like this

"youthful indiscretion"?
"individual responsibilities pertaining to her well-being and safety"?

No wonder there is a problem in our schools and our city. A young man assaults a woman who is passed out and we victim blame and write it off as no big deal. We've got a problem alright...


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