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The California Supreme Court was peppered with more petitions over the October election Monday, just days after justices turned back an attempt to get them involved in the recall of Gov. Gray Davis. Two papers asking for writs of mandate were filed with the high court. In one, two San Francisco citizens are asking the court to prevent other governor candidates’ names from going on the ballot. The citizens’ attorney is Jerome Falk Jr., a name partner at Howard, Rice, Nemerovski, Canady, Falk & Rabkin. The other, filed by Jon Eisenberg of Horvitz & Levy in Oakland, asks that two ballot initiatives, including University of California Regent Ward Connerly’s controversial “racial privacy” measure, be taken off the October ballot and instead go to voters in March. Falk’s petition marks a shift in litigation strategy among anti-recall forces. On Friday, the state Supreme Court declined to review a case challenging the validity of the campaign to oust Davis. Falk has revitalized debate over what some believe is vague language regarding recall elections. If the Supreme Court grants the petition, Lt. Gov. Cruz Bustamante would automatically become governor if voters decide to recall Davis on Oct. 7. At issue is Article 2 of the California Constitution, which says that recall voters should pick a successor, “if appropriate.” “That provision necessarily implies that there are some circumstances in which it would not be ‘appropriate,’” according to the petition. Falk said picking a successor is inappropriate because the state constitution designates the lieutenant governor as the governor’s successor. Falk isn’t the first person to bring up the “if appropriate” clause. Last week, the capital buzzed with theories that Bustamante would exclude other candidates from running when he set the election date. That didn’t happen, and the issue seemed to die. Falk said he resurrected it because “that’s what the courts are for.” “This is the kind of issue that should be decided by the Supreme Court,” he said. Bustamante’s office hadn’t seen the petition and said it couldn’t comment. The office of Attorney General Bill Lockyer, which has represented Secretary of State Kevin Shelley in other recall litigation, said the same thing. Falk said he and the other Howard, Rice lawyer working on the case, Steven Mayer, have had no contact with either Bustamante or Davis about their petition. Both lawyers said they’re Democrats, but declined to say what they think about the recall. They are representing James Frankel and his wife, Louise. Frankel is a retired lawyer. His son, Simon, is a partner at Howard, Rice. Falk hopes the Supreme Court decides the matter by Aug. 8, the deadline for other candidates to file papers to be on the ballot. Howard, Rice has been involved in other elections battles. Mayer helped challenge Proposition 21, the initiative that allows juveniles to be charged as adults, and also defended Proposition 36, the measure that dramatically changed state drug courts. The secretary of state lists Howard, Rice as a “major donor” in the 2001-02 election cycle but does not have details available over the Internet about which candidates or issues the firm donated to. Eisenberg’s filing is separate from Falk’s case, but also could affect what voters see when they go to the polls. Eisenberg is challenging the inclusion of Connerly’s initiative, as well as a measure addressing government infrastructure spending. His filing says it’s not appropriate for those initiatives to be on the same ballot as the recall because the recall is not a “special statewide election,” as defined by the California Constitution. The Supreme Court has asked Shelley to file an opposition brief. Eisenberg and Falk both ask the high court for immediate review. Last week, justices voted not to review a rush appeal filed by anti-recall lawyers who were challenging the validity of signatures gathered by Davis’ foes. The attorney handling that case, Paul Kiesel, of Beverly Hills’ Kiesel, Boucher & Larson, sounded discouraged after he was shot down Friday and acknowledged the court would be reluctant to decertify the election over the signature issue. Even so, Kiesel’s partner Raymond Boucher said Monday that the firm would continue litigating the case in the lower courts. Another suit challenging the recall is scheduled to be heard in federal court today. University of San Diego School of Law professor Shaun Martin will argue that it’s unconstitutional to require voters to vote “yes” or “no” in the recall before allowing them to vote on a successor. Shelley’s office has said votes on successors won’t be counted unless voters first decide on Davis. The state Supreme Court petitions are Eisenberg v. Shelley and Frankel v. Shelley. The federal case is Partnoy v. Shelley, 03-1460. Associated Press contributed to this report. Reporter Jeff Chorney’s e-mail address is [email protected]

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