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PARTNOY v. SHELLEY

July 29, 2003

FRANK PARTNOY, AN INDIVIDUAL; LAURA ADAMS, AN INDIVIDUAL; PETER STRIS, AN INDIVIDUAL; JASON WILSON, AN INDIVIDUAL; AND CALIFORNIA INFORMED VOTERS GROUP, AN UNINCORPORATED ASSOCIATION, PLAINTIFFS, VS. KEVIN SHELLEY, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE FOR THE STATE OF CALIFORNIA; SALLY MCPHERSON, IN HER OFFICIAL CAPACITY AS THE REGISTRAR OF VOTERS FOR THE COUNTY OF SAN DIEGO; AND CONNY MCCORMACK, IN HER OFFICIAL CAPACITY AS THE REGISTRAR — RECORDER/COUNTY CLERK FOR THE COUNTY OF LOS ANGELES, DEFENDANTS


The opinion of the court was delivered by: Barry Moskowitz, District Judge

I. INTRODUCTION

This case involves the recall election of California Governor Gray Davis which is currently set for October 7, 2003. By bringing this suit Plaintiffs are not, however, trying to halt or delay the recall election. Rather, Plaintiffs seek to have one discrete provision of the California Elections Code, involving how the votes are to be counted, declared unconstitutional. The challenged provision, section 11382 of the California Elections Code, states that "No vote cast in the recall election shall be counted for any candidate unless the [ Page 2]

voter also voted for or against the recall of the officer sought to be recalled." The question before the Court is whether this provision violates Plaintiffs' First and Fourteenth Amendment rights of free expression and their right to vote for the person who will govern them.

II. BACKGROUND

On July 23, 2003, the California Secretary of State certified that a petition to recall Governor Gray Davis had obtained the requisite number of signatures to require a recall election ("the Davis Recall"). Consistent with California law, Lieutenant Governor Cruz Bustamante set an election date of October 7, 2003. On July 23, 2003, Plaintiffs filed the instant lawsuit seeking to enjoin the enforcement of California Elections Code § 11382 ("section 11382") and a declaration that section 11382 violates the United States Constitution. On July 24 and 25, 2003, the Court held several status conferences to coordinate the proceedings in this case. During these status conferences the parties made several representations, waivers, and stipulations in order to expedite the resolution of this case: (1) Defendants waived all objections to venue; (2) Defendants represented to the Court that they will not print, mail or distribute any ballots or instructions on the recall voting procedures until August 20, 2003, at the earliest;*fn1 (3) all parties agreed that the appropriate method for resolving this issue was on a motion for judgment on the pleadings and Defendants agreed to waive any objection to Plaintiffs filing such a motion prior to Defendants serving their answer, and (4) the parties agreed that because there were no disputes of fact and that this case involves purely a matter of law, if the Court were to order any sort of injunctive relief, it should be on a permanent, and not preliminary, basis.

The Court set an expedited briefing schedule so that this matter could be resolved by the district court and allow for appellate review. Los Angeles County and San Diego County contend that they must send the ballots to the printer no later than August 16, 2003, and [ Page 3]

August 20, 2003, respectively.

III. DISCUSSION

The California recall procedure is set forth in the California Constitution and the California Elections Code. Article 2, section 14 of the California Constitution provides:

(a) Recall of a State officer is initiated by delivering to the Secretary of State a petition alleging reason for recall. Sufficiency of reason is not reviewable. Proponents have 160 days to file signed petitions.
(b) A petition to recall a statewide officer must be signed by electors equal in number to 12 percent of the last vote for the office, with signatures from each of 5 counties equal in number to 1 percent of the last vote for the office in the county.
Article 2, section 15 provides for the recall election:
(a) An election to determine whether to recall an officer and, if appropriate, to elect a successor shall be called by the Governor and held not less than 60 days nor more than 80 days from the date of certification of sufficient signatures.
(c) If the majority vote on the question is to recall, the officer is removed and, if there is a candidate, the candidate who receives a plurality is the successor. The officer may not be a candidate, nor shall there be any candidacy for an office filled pursuant to subdivision (d) of Section 16 of Article VI.
Section 11320 of the Elections Code provides that the recall ballot shall have the following question: "Shall Gray Davis be recalled (removed) from the officer of Governor?" The voter shall mark "yes" or "no" to the right of the question. Section 11384 of the Elections Code provides that, "If a majority of the votes on a recall are `Yes', the officer sought to be recalled shall be removed from office upon qualification of his successor." Section 11385 provides that "If at a recall election an officer is recalled, the candidate receiving the highest number of votes for the office shall be declared elected for the unexpired term of the recalled officer."

The provision in question here, section 11382, provides that, "No vote cast in the recall election shall be counted for any candidate unless the voter also voted for or against the recall of the officer sought to be recalled." Section 11382 is derived from the 1911 amendment to the California Constitution which provided that:

[N]o vote cast shall be counted for any candidate for said office unless the voter also voted on said question of the recall of the person sought to be [ Page 4]
recalled from said office.

1911 Cal. Const., art. XXIII, § 1. The provision at issue here was removed from the California Constitution but enacted in its present form in section 11382.

Plaintiffs contend that section 11382 violates their rights under the United States Constitution because it requires them to vote either "yes" or "no" on the issue of whether Governor Davis should be recalled as a prerequisite for counting their votes on any successor candidates for Governor. Plaintiffs allege that while they fully intend and desire to vote on who will be the next Governor, should Governor Davis be recalled, they do not want to vote on the recall issue itself. Some of the Plaintiffs state that they are morally and/or politically opposed to voting on the recall because "the recall is either an illegitimate political process in general, or especially in the Davis Recall," and believe that participating in the process by voting "yes" or "no" "either legitimates the process or is untenable as a matter of personal principle." Motion at 19. Other Plaintiffs state that they are "agnostic on the merits of the recall" and therefore prefer not to vote one way or the other on the issue.

Plaintiffs allege that section 11382 violates their Constitutional rights to due process and equal protection under the Fourteenth Amendment because if they do not vote on the recall issue, their votes on potential successors will not be counted. Plaintiffs contend that their rights under the First Amendment are also violated because they are being forced to speak on the recall decision despite their wishes not to do so. Additionally, Plaintiffs allege that this provision violates their right "not to vote" which is "implicitly recognized in the Ninth, Fourteenth, Fifteenth, Nineteenth, and Twenty — Sixth Amendments." Motion at 3.

It is clear to the Court, and not contested by Defendants, that the case is ripe for determination and that Plaintiffs have standing to challenge section 11382. Since the petition for the Davis Recall has been certified, an election date has been set, and the challenged election provision is still in effect, there is an actual "case or controversy." The named Plaintiffs are all registered voters, either in San Diego County or Los Angeles County and have stated both their intention to vote for any successor to the current Governor and their intention not to vote on the issue of the recall, or their opposition to being coerced into [ Page 5]

having to vote on the recall issue. This is sufficient to meet the standard for individual standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

California Informed Voters Group ("CIVG"), an unincorporated association, is also a plaintiff in this suit. An association has standing to bring suit on behalf of its members when "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit. Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). It is clear from an examination of the pleadings, and the fact that the individual plaintiffs have standing, that CIVG has standing to sue as well. See Fair Housingin Huntinaton Committee Inc. v. Town ...


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