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Initial Motion by Judge Persky

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Initial Motion by Judge Persky 1 MARKS. ROSEN (SBN 72431) Attorney at Law 2 600 W. Santa Ana Blvd., Suite 814 Santa Ana, California 92701 3 Telephone (714) 285-9838 4 Facsimile (714) 285-9840 Email: [email protected] 5 JAMES McMANIS (SBN 40958) 6 McManis Faulkner a Professional Corporation 7 50 W. San Fernando St., 10th Floor 8 San Jose, California 95113 Telephone ( 408) 279-8700 9 Facsimile ( 408) 279-3244 Email: [email protected] 10 Attorneys for Petitioner, AARON PERSKY 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF SANTA CLARA 14 15 AARON PERSKY, ) Case No.: 16 ) Petitioner, ) VERIFIED PETITION FOR WRIT OF 17 v. ) MANDATE ) 18 SHANNON BUSHEY, Santa Clara County ) Registrar of Voters, ) 19 ) Respondent, ) 20 ---------------:) IMMEDIATE ACTION REQUIRED 21 Michele Dauber, Magdalena G. Carrasco, Grace ) ELECTION LAW MATTER ENTITLED TO H. Mah, Robert Livengood, Raul Peralez, Richard ) CALENDAR PREFERENCE 22 Tran, Gary Kremen, Patrick J. Burt, Amado M. ) (Code Civ. Proc.,§ 35) Padilla, Shanta Franco-Clausen, Yan Zao, Jennifer) 23 Briscoe, Suzanne E. Doty, Allan Seid, M. Veira C.) 24 Whye, Kavita Tankha, Sophia Yen, Gabriel ) Manjarrez, Steve Ko, Paulette Altmaier, ) 25 ) Real Parties in Interest 26 27 Petitioner Aaron Persky petitions this Court for an alternative writ of mandate and order to 28 show cause, and a peremptory writ of mandate, and by this verified petition alleges: -1- VERIFIED PETITION FOR WRIT OF MANDATE 1 1. Petitioner respectfully requests that this Court issue an alternative writ of mandate and 2 order to show cause, and then a peremptory writ of mandate, commanding the following: 3 A. That respondent Shannon Bushey, as Santa Clara County Registrar of Voters, 4 withdraw certification of the August 1, 2017 petition to recall Petitioner, a Judge of the Santa 5 Clara County Superior Court, and instead refer the recall to the California Secretary of State 6 as the officer with proper jurisdiction over recall of Superior Court judges; 7 B. That real parties in interest, the sponsors of the recall petition, be enjoined 8 from circulating any recall petition until the Secretary of State has notified the real parties in 9 interest that the form and wording of the petition has met the requirements of the Elections 10 Code and has certified the petition for circulation; 11 C. That respondent Shannon Bushey withdraw certification of the August 1, 2017 12 petition to recall Petitioner, and that real parties in interest, the sponsors of the recall petition, 13 be enjoined from circulating the petition while it has the misleading and inaccurate statement: 14 "We demand an election of a successor to that office." Ifthere were a vacancy in the position 15 of superior court judge as a result of a recall, the vacancy would be filled by an appointment 16 by the Governor, and not by election. 17 2. Petitioner Aaron Persky is a registered voter and resident of the County of Santa Clara. 18 Judge Persky is a Judge of the Santa Clara County Superior Court. Judge Persky was appointed to 19 the Superior Court in 2003 and has been periodically reelected since then, most recently in 2016 for a 20 six-year term. 21 3. Respondent Shannon Bushey is now, and at all times herein mentioned was, the 22 Registrar of Voters for the County of Santa Clara. She received the petitions for the attempt to recall 23 Judge Persky and assumed control over the petition process. 24 4. Real parties in interest, Michele Dauber, et al., ("RPis") submitted the petition which 25 is the subject of this petition. They are named herein as real parties in interest because they will be 26 affected by any order that restricts the circulation of the recall petition or which requires that the 27 petition be submitted to the Secretary of State. 28 5. On or about June 26, 2017, a notice of intention to recall Judge Persky was submitted -2- VERIFIED PETITION FOR WRIT OF MANDATE 1 to the Santa Clara County Registrar of Voters office. Judge Persky submitted an answer. On or 2 about July 10, 2017, real parties in interest submitted to Bushey a document entitled Petition for 3 Recall of Judge Aaron Persky which contained the notice of intention and the answer. A copy of the 4 July 10, 201 7 petition is attached hereto as Exhibit A. On information and belief, the petition was not 5 submitted to the California Secretary of State. The petition contained the names of 20 proponents of 6 the recall. The petition contained the words, "We demand an election of a successor to that office." 7 6. On or about July 13, 2017, an attorney on behalf of Judge Persky wrote to Bushey 8 objecting to several items in the proposed petition. A copy of that letter is attached hereto as Exhibit 9 B. Among other objections, the letter objected to Bushey receiving the petition and questioned 10 whether she was the appropriate officer to receive it. 11 7. The Registrar did not acknowledge that she was not the proper elections official, and 12 continued to preside over the recall petition. An attorney from the Office of the County Counsel 13 responded by email. A copy of the email is attached hereto as Exhibit C. 14 8. The Registrar wrote to real parties in interest pointing out several flaws in the petition. 15 On or about August 1, 2017, real parties in interest submitted to the Registrar a second amended 16 petition which still contains the reference to an election of a successor. A copy of the second 17 amended petition is attached hereto as Exhibit D. 18 9. On or about August 9, 2017, the Registrar confirmed to Professor Dauber that the 19 August 1, 2017 petition had been approved for circulation. 20 I. THE SECRETARY OF STATE SHOULD HANDLE THE RECALL BECAUSE A SUPERIOR COURT JUDGE IS A STATE OFFICER. 21 22 10. Under Article II, section 14 of the California Constitution, Article VI, sections 1 and 23 16 of the California Constitution, and Elections Code section 11221(c)(l), respondent has a clear, 24 present, mandatory, and ministerial duty to refrain from unlawfully serving as the presiding elections 25 official for any attempt to recall Petitioner. Bushey, as Registrar of Voters for Santa Clara County, is 26 not the proper party to have received the recall petition or to preside over the recall. 27 11. Article 2 of the California Constitution provides for recall. Article 2, section 14(a) 28 provides for the recall of state officers, and provides in part that "(a) Recall of a state officer is -3- VERIFIED PETITION FOR WRIT OF MANDATE 1 initiated by delivering to the Secretary of State a petition alleging reason for recall." Article 2, 2 section 14(b) discusses "statewide" officers. It requires recall petitions against "statewide" officers to 3 be signed by "12 percent of the last vote for the office, with signatures from each of 5 counties equal 4 in number to 1 percent of the last for the office in the county." Section 14(b) then refers to recalls of 5 "Senators, members of the Assembly, members of the Board of Equalization, and judges of courts of 6 appeal and trial courts," for which the signatures must equal "20 percent of the last vote for the 7 office." This constitutional provision covers "state" officers. Section 14(c) provides that the 8 Secretary of State shall maintain a continuous count of the signatures certified to that office. 9 12. Section 14 thereby treats "judges of ... trial courts" as state officers, for whom a 10 recall is initiated by delivering the petitions to the Secretary of State, not to a county registrar of 11 voters. 12 13. Article 2, section 19 says the Legislature shall provide for recall of local officers. In 13 conflict with Article 2, section 14, the Legislature has erroneously categorized Superior Court judges 14 as "local" officials in Elections Code sections 11001-11004. Section 11001 states that judges of the 15 courts of appeal are considered state officers, but judges of trial courts are considered county officers. 16 Elections Code section 11002(a) provides that a county elections official is the elections official for 17 trial judges. But the Elections Code otherwise acknowledges that trial court judges are state officers. 18 Elections Code section 11221 (c )( 1) provides in part: "In the case of a state officer, including judges 19 of courts of appeal and trial courts, the number of signatures shall be as provided for in subdivision 20 (b) of section 14 of Article II of the California Constitution." 21 14. The Legislature has elsewhere defined trial courts as state agencies and trial court 22 judges as statewide officers. Government Code section 3202, pertaining to political activities of 23 public employees, "applies to all officers and employees of a state or local agency." It defines local 24 agencies as counties,' cities, and other political subdivisions. It defines "state agency" as "every state 25 office, department, division, bureau, board, commission, superior court, court of appeal, the Supreme 26 Court, the California State University, the University of California, and the Legislature." (Gov. 27 Code,§ 3203, subd. (b) [emphasis added].) Government Code section 84215(a), pertaining to filing 28 of campaign statements, specifically includes "superior court judges" in the category of "statewide -4- VERIFIED PETITION FOR WRIT OF MANDATE 1 elected officers." 2 15. The California Supreme Court has generally recognized that judges are state officers. 3 In Olson v Cory (1980) 27 Cal.3d 532, 543, a case concerning pensions, the Supreme Court did not 4 distinguish between appellate and trial court judges when it found: "Judges are state officers." 5 16.
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