SAN JOSE — An appointed judge on Monday lifted a temporary restraining order that had blocked supporters of a recall campaign to oust Santa Clara Superior Court Judge Aaron Persky from collecting signatures, giving them a shot at recalling him in elections next June.
Kay Tsenin, a retired San Francisco Superior Court judge, said at the end of an hour-long hearing that the recall campaign could begin collecting signatures and would regain any of the 160 days they lost to gather them as a result of the TRO that was issued earlier this month.
The ruling prompted a dozen campaign supporters in the courtroom, including Stanford Law School professor Michele Dauber, to erupt into applause. As she rose to leave the court, Tsenin said: “It’s not about that, ladies and gentlemen. It’s about the law.”
Had Tsenin not lifted the restraining order, the recall campaign would have run the risk of missing the tight deadlines spelled out in the Elections Code to put the recall on the June 2018 ballot during county elections. If they had been blocked past Sept. 1, the campaign would have had to set its sights on elections the following November.
The recall campaign’s lawyer, Fredric Woocher of Strumwasser & Woocher in Los Angeles, argued the TRO was an unjustified “prior restraint” of their First Amendment rights.
Recall supporters have pursued Persky’s removal from the bench since June 2016, when he found himself at the center of a nationwide uproar for sentencing Stanford University student Brock Turner to just six months in jail for sexually assaulting an unconscious woman.
Since then, critics have accused the judge, appointed by Gov. Gray Davis in 2003, of handing down lenient sentences against men accused of assaulting women. The recall campaign formally launched at the end of June with a filing to the Santa Clara County Registrar of Voters.
Persky’s lawyers at the McManis Faulkner firm sought the restraining order based on arguments that Superior Court judges are “state officers,” and that the recall campaign should have initiated their effort with the secretary of state’s office. In short, they contend that parts of the state Elections Code violate the California Constitution.
Tsenin did not make a definitive ruling on that issue Monday, saying she would give Persky’s lawyers a chance to respond in writing to briefs filed by the secretary of state and the California Attorney General’s Office arguing against that position. But she gave a clear indication she’s likely to rule against Persky.
In a tentative ruling that she read aloud in court, Tsenin said it is well-settled law that when evaluating provisions that could have dual meanings, “mere doubt is not a sufficient basis for finding [a provision] constitutionally defective,” She added: “Thus the court finds the recall petition was properly filed with the registrar of voters.”
Elizabeth Pipkin, a partner at McManis Faulkner who argued at the hearing, said afterward: “We believe the constitution is on our side. The rule of law requires that the constitution takes precedence over statutes passed by the Legislature, and we plan to move forward.”
Meanwhile, Dauber and about a dozen recall supporters gathered jubilantly outside the courthouse, shouting: “This is what democracy looks like!” Dauber, who heads the campaign, said they would begin collecting signatures immediately “and look forward to placing the recall of Judge Persky on the ballot.”