Persky v. Bushey
21 Cal. App. 5th 810
Cal. Ct. App. 5th2018Background
- Aaron Persky, a Santa Clara County superior court judge, sought a writ to stop circulation of a recall petition filed by Michele Dauber and others, arguing the Secretary of State (not the county Registrar) must receive and certify recall petitions for superior court judges.
- Proponents filed the notice and an amended petition with the County Registrar, who approved it for circulation and set a 160-day period and signature threshold based on Elections Code procedures treating trial judges as local/county officers.
- Persky filed an ex parte application for TRO and peremptory writ; a TRO issued but was dissolved after briefing; the trial court denied the writ, holding the Registrar was the proper official and the petition was not misleading.
- The Secretary of State intervened opposing Persky’s petition; proponents, the Registrar, and the Secretary argued the Elections Code validly treats trial judges as local officers for initial recall steps.
- The appellate court reviewed whether Elections Code provisions (div. 11) conflict with article II, section 14 of the California Constitution and affirmed the trial court, finding no constitutional conflict.
Issues
| Issue | Persky's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether article II, §14 makes superior court judges "state officers" so recall petitions must be filed with Secretary of State | Persky: §14 treats trial judges as state officers; constitution requires petition delivered to Secretary of State | Real Parties/Secretary: §14 sets signature thresholds only; Legislature may treat trial judges as local/county officers for initial steps | Court: §14 does not classify trial judges as state officers for filing/certification; Elections Code validly treats them as local/county officers for initial recall steps |
| Whether Elections Code provisions (division 11) conflict with constitution when they designate county elections officials to receive/certify trial court recall petitions | Persky: Legislative definitions conflict with constitutional recall scheme | Defendants: Legislature acted under art. II, §16 authority to provide procedures; code is consistent with constitution and history | Court: No inevitable, total conflict; statutes upheld as constitutional |
| Whether the petition’s request for an election naming a successor is misleading because Governor appoints successors for judicial vacancies | Persky: Petition incorrectly demands election of successor | Defendants: Petition complies with statutory content requirements; trial court found no inaccuracy | Court: Trial court’s finding that petition was not misleading stands; Persky did not renew this claim on appeal |
| Whether Secretary of State’s interpretation warrants deference that would alter result | Persky: Secretary should manage recall process | Defendants: Secretary’s view is one interpretive source only | Court: Agency interpretation gets limited weight; statutory/constitutional text governs and supports Elections Code scheme |
Key Cases Cited
- Lockheed Aircraft Corp. v. Superior Court, 28 Cal.2d 481 (affirming presumption of statutory validity)
- Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (text-first approach to constitutional/initiative interpretation)
- Olson v. Cory, 27 Cal.3d 532 (addressing judicial salary protections; does not classify trial judges as state officers for all purposes)
- Warden v. Harker, 212 Cal. 775 (historical dicta about recall and assigned judges; not controlling here)