Restraining Order Lifted, Effort To Recall Judge Persky Can Resume

SAN JOSE (CBS SF) -- A retired judge lifted a temporary restraining order that prevented the collection of signatures for the recall of Santa Clara County Court Superior Judge Aaron Persky, the judge who sentenced a convicted rapist to just six months in jail last year.

Judge Ksenia Tsenin announced the rescinding of the order in Santa Clara County Superior Court today, which opens the way for proponents of the recall to move forward with collecting signatures in support of it.

"We're very thankful that the judge ruled in favor of Santa Clara County voters and their constitutional right to petition to recall Judge Persky," said Recall Persky Campaign chair and Stanford Law professor Michele Dauber after today's ruling. "This ruling validates our belief that Judge Persky filed a frivolous lawsuit that was intended to stall, delay and obstruct the democratic process, and also to waste taxpayer money."

Persky's sentence of former Stanford student-athlete Brock Turner drew nationwide ire and criticism in 2016. Turner is no longer attending Stanford and is a registered sex offender. He was convicted of assault with intent to commit rape, sexual penetration of an intoxicated person with a foreign object -- his finger -- and sexual penetration of an unconscious person with a foreign object.

Turner was stopped from continuing the attack on his unconscious victim, on the ground outside a frat party on the Stanford campus, when two grad students saw the assault in progress and intervened on Jan. 18, 2015.

Persky had sued after the intent to recall request was submitted earlier this year, arguing the state should have the right to remove or recall judges, not the public.

"We believe the constitution is on our side. The rule of law requires that the constitution take precedence over statues passed by the legislature and we plan to move forward," said Elizabeth Pipkin, who is one of Persky's attorneys.

Persky's attorneys tried to argue that the California constitution labels Persky and all district judges as subject to reprimand and jurisdiction by the state, hence making him ineligible for a county recall.  Tsenin didn't think the argument was compelling enough to not lift the temporary restraining order.

Pipkin will appeal the ruling to the California Court of Appeals.  If that court overturns Tsenin ruling, any signatures collected by the recall effort between now and when the appeals court ruling is issued will be considered invalid. Dauber said they will begin collecting signatures immediately. The petitions are currently enroute from Southern California.

If Persky were to be recalled, it would be the first recall of a Santa Clara County judge in history. Dauber said only two judges in state history have been recalled, one in 1913 in San Francisco and the other in 1932 in Los Angeles.

San Francisco Court Judge Charles Weller was recalled in 1913 after he reduced bail for a man charged with felony assault of a 16-year-old girl. Dauber credited women's clubs in the city for organizing to remove Weller from office.

"We'll continue collecting signatures immediately and look forward to placing the recall of Judge Persky on the June ballot," Dauber said.

Supporters of Persky's recall effort cheered as the Tsenin made her ruling and as court was adjourned. They'll have 159 days after today to collect 58,634 signatures in order to qualify for the June 2018 ballot.

Tsenin reminded those clapping after today's ruling to think about the totality of the recall.

"It's not about him, it's about the law," the presiding judge said.

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