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Following appeal denial, Persky recall measure remains on June ballot

The 6th District Court of Appeals in San Jose is housed in the Comercia Bank building. (Courtesy of Wikimedia Commons)

The measure to recall Judge Aaron Persky ’84 M.A. ’85 will remain on the June 5 Santa Clara County ballot, following the 6th District’s denial of Persky’s appeal on Monday.

Persky appealed the ballot measure on what the appellate court deemed a minor technicality, arguing that because he is technically a “state officer,” as opposed to a “local officer,” the recall petition should have been filed with the California Secretary of State rather than the Santa Clara County Registrar of Voters.

The court ruled that there was no “constitutional basis on which to delay the processing of the current recall petition,” according to the Mercury News.

Persky’s same argument was denied by a lower court in the summer of 2017.

Had Persky’s appeal succeeded, the recall would have been postponed until November while its proponents refiled their petitions with the state, resulting in a $5 million increase in election costs.

Though Persky may appeal the ruling to the California Supreme Court, the court is not technically required to hear the case. The state Supreme Court is unique in its ability to hear cases selectively; Persky was entitled to a hearing at the appellate level.

A Santa Clara County Superior Court judge, Persky faces recall for giving what critics describe as an overly lenient sentence to former Stanford swimmer Brock Turner, who was convicted of three felonies after he sexually assaulted a woman outside Kappa Alpha in Jan. 2015.

Leaders of the Recall Aaron Persky campaign characterized Persky’s appeal as trivial twice and responded to the 6th District’s verdict with energized advocacy.

“Today the Court of Appeals dealt Judge Persky’s frivolous litigation a death blow, ruling that there was never any merit to his suit nor any constitutional basis for it,” read a statement published Monday afternoon on the group’s Facebook page. “This frivolous litigation is just one more sign that he has terrible judgment and should be unseated in the June 5, 2018 primary.”

The Recall Aaron Persky campaign is chaired by Stanford Law activist professor Michele Dauber, a family friend of Brock Turner’s victim, known publicly as Emily Doe. Over 94,000 individuals have signed Dauber’s petition to bring the motion to recall to the Santa Clara County Board of Supervisors, which approved the recall’s spot on the ballot in February.

Many individuals have also spoken out against the recall campaign, including some Stanford Law School affiliates, who believe that recalling Persky compromises judicial independence.

In June 2017, 53 Stanford Law graduates wrote an open letter to Dauber against her petition, and 30 Stanford professors, among 65 other California law professors, signed a letter that urged readers to oppose the recall.

Robert Weisberg, one of the faculty letter’s co-signees, told The Daily in Sept. 2017 that Persky’s ruling in the Turner case was not extreme enough to warrant a recall.

“In the spirit of recall, if a judge makes unpopular decisions, does that make him an outlier?” Weisberg said. “There is hardly any evidence of an atypical ruling in the cases of sexual assault as a baseline. There is no evidence of clear bias on behalf of Judge Persky. The historical understanding of the recall law is that there has to be an anomaly; it has to be extreme.”

Weisberg also expressed his concern about a perceived association between the recall campaign and Stanford Law as an institution.

“If more Stanford law professors opposed the recall than favored it … that should help disabuse the public of the notion that [the recall campaign] is Stanford Law School’s position,” he said.

Santa Clara County has until next Tuesday, April 3 to finalize its ballot for the June primary, when voters will decide whether Persky will be removed from office. A second measure on the ballot will allow voters to decide who should serve out the final four years of Persky’s term if he is indeed recalled. Assistant District Attorney Cindy Hendrickson ’87 and San Jose civil attorney Angela Storey are currently running for the potential open seat.

Correction: A previous version of this article stated that Brock Turner raped Emily Doe outside Kappa Alpha. While he was convicted of three felony counts of sexual assault, prosecutors dropped rape charges against him, and the prior use of the term “rape” in reference to Turner’s crime was legally erroneous. The Daily regrets this error. 

Contact Claire Wang at clwang32 ‘at’ stanford.edu and Courtney Douglas at ccd4 ‘at’ stanford.edu.

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