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Jon Coupal- Columnist

Jon Coupal is an attorney and president of the Howard Jarvis Taxpayers Association -- California's largest taxpayer organization with offices in Los Angeles and Sacramento. [go to website]

Into the courts
[Jon Coupal and Trevor Grimm] 8/9/03

The effort to recall Governor Davis is a war. As in most major military conflicts, there are several fronts. There is the battle among Republicans posturing to replace Governor Davis (a battle that appears to be civil, for now). There is the battle among Democratic strategists over whether to run a candidate on their side. And, of course, there is the huge public relations battle being waged by all.

The battles less known are those being fought in the courtroom. A review of just one of those legal battles gives the public insight into just how complicated, confused and convoluted the recall litigation can be.

In July, Governor Davis launched an onslaught against the recall initiative before it had been certified by the Secretary of State. The governor's attorneys filed what purported to be a "class action" on behalf of all voters in the state of California. They asked the court to prevent the county registrars in Los Angeles, Orange and San Diego counties from continuing their signature counting until such time as the plaintiffs had the opportunity to further "investigate" the qualifications of the signature gatherers.

Davis' lawyers asked for what is known as a "temporary restraining order" designed to take effect immediately. To spur the court to action, Davis cited two declarations by signature gatherers from Arizona who were not residents or registered voters in California as evidence that signatures were illegally gathered. Under the state's election code the signature gatherers must be registered voters in the state. As pointed out by the San Francisco Chronicle, the governor was basing his case on declarations of two confessed liars -- not a good "credibility" move.

Davis' lawyers also requested an expedited discovery schedule (an opportunity to question witnesses under oath), wiping out the statutory 20 day waiting period. This was so they could immediately depose signature gatherers who they claimed were fleeing the state in droves.

After about an hour of argument, Superior Court Judge Carl J. West said that he did not agree with the "class action" approach taken by the plaintiffs. The judge may have agreed with many observers who thought the class action approach was a politically motivated attempt to insinuate that the voters of California support Davis' efforts to stay in office.
Judge West denied any temporary relief and set the matter for hearing on August 8. The judge likewise rejected any expedited discovery, stating there was no showing that the "sky was falling" or that this matter needed any special attention.

The score at this point: Davis 0, Recallers 2.

The governor's lawyers continued with a claim that once the signatures were certified and sent to the Secretary of State, a "cascade" of results would occur, mainly that the Lt. Gov. Cruz Bustamante would be required to set an election this fall.

The judge listened attentively and then reaffirmed his prior order: No showing of any imminent disaster necessary to stop the counting by the registrars and no reason to annul the normal discovery rules governing all civil actions.

Charles Bell, a lawyer for the recall organizers, noted that he was encouraged about the recall bakers' chances to defeat the request made by Davis' attorneys when he noticed their brand new elections codes books and compared them to the shop-warn/dog eared versions carried by the recallers' lawyers.

Supporters of the recall may take some solace from this initial victory, but in this battle between a desperate governor and an angry populace it is wise to remember the sage words of Yogi Berra, "It ain't over 'till it's over." And nothing brings Berra's words of wisdom home more than the fact that a new lawsuit was filed this week by Davis attacking the recall process itself.

Expect to hear more from the lawyers.


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