‘Do the Recall Leaders Have to Throw Away All the Petitions?’

‘Do the Recall Leaders Have to Throw Away All the Petitions?’

File photo by Sam Hodgson

Mayor Bob Filner

Randy Dotinga and Lisa Halverstadt put together a FAQ on the recall process. It included answers for questions like “How much is all this going to cost?” But one reader offered another question he wanted answered:

Don Wood:

Here is a question I’d like a straight answer to. The city attorney has stated that the current city recall ordinances are unconstitutional. Yet signature petitions have begun circulating under the current ordinances. The City Council plans to sit down toward the end of the month and may substantially amend the recall ordinances to make them constitutional. If that happens, do the recall leaders have to throw away all the petitions they have gathered up until the ordinance change, and start the recall process all over again with a notice in local media and to the city clerk? If the recall leaders hold onto petitions signed before the ordinances were changed, are those petitions legal and can they be turned in too meet the signature requirements to trigger a recall election, or are they illegal since they were gathered under the city’s current unconstitutional recall ordinances?

Halverstadt replied:

Hi Don,

Thanks for your question.

The city attorney’s office says it won’t enforce the provision in the city’s recall rules that’s considered unconstitutional regardless of the City Council’s actions so that provision shouldn’t affect the recall process or organizers’ signature-gathering efforts.

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Dagny Salas

Dagny Salas

Dagny Salas was web editor at Voice of San Diego from 2010 to 2013. She was an investigative fellow at VOSD from 2009 to 2010.

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15 comments
Christopher Crotty
Christopher Crotty

In California, a city's Charter is akin to a constitution. Just as it would be impermissible for Congress to fail to enforce a provision of the U.S. Constitution, so too is it impermissible for the City Attorney or the City Council to ignore a provision of the City Charter. The question of standing is simple – any registered voter in the City of San Diego. Much like standing concerning the U.S. constitution is derived from the Constitution's Article III provision that federal courts have the power to hear "cases" arising under federal law and "controversies" involving certain types of parties, so too does a state court have the power to determine whether a provision of the Charter unconstitutional. Once that occurs, one refers back to the Charter for the remedy – a vote of the people.

Bill Bradshaw
Bill Bradshaw

Keep those petitions coming, guys. This thing is far from over. There are still lots of loose ends and numerous interested parties, any of which could hang up a deal with Filner.

Bill Bradshaw
Bill Bradshaw subscribermember

Keep those petitions coming, guys. This thing is far from over. There are still lots of loose ends and numerous interested parties, any of which could hang up a deal with Filner.

Conquistador
Conquistador

I left San Diego 5 years ago so I'm not sure what's going on or why this guy isn't gone already. However, I'm sure if this was like most cities in the USA, he would be long gone, So what's the deal? Why isn't there more pressure to give him the boot?

Vic Asselin
Vic Asselin

Assuming that BackDoor Bob doesn't cut a deal that makes him rich and invulnerable to all claims for ever and ever, is there any doubt that regardless of what the city attorney does he will tie an issue like this up in the courts and it will go on and on and on....while he continues to be jovial, full of wisecracks and most of all - tan? I keep getting back to the 4th ticket to Paris that the city purchased which I'm sure went to his ex girlfriend, Brownwyn the Silent. Not being an attorney, I ask a simple question. When this comes out - which it will - is this in any way a criminally indictable offense?

Bill Bradshaw
Bill Bradshaw

I share Don Wood's concern about the recall process. I have no faith in the negotiations to get Filner out; the guy is extremely stubborn and has proven duplicitous on several occasions while mayor. He's fully capable of agreeing to something then refusing to sign the documents or making additional demands at the last minute that are unacceptable to city negotiators. On the other hand, recall is a foolproof process unless some judge throws it out on a technicality. The council and city attorney have had months to correct any legal flaws in the recall procedures. If sufficient valid signatures are obtained and it ends up being invalidated in court, I don't think I'd like to be a San Diego elected official at that point.

Bill Bradshaw
Bill Bradshaw subscribermember

I share Don Wood's concern about the recall process. I have no faith in the negotiations to get Filner out; the guy is extremely stubborn and has proven duplicitous on several occasions while mayor. He's fully capable of agreeing to something then refusing to sign the documents or making additional demands at the last minute that are unacceptable to city negotiators. On the other hand, recall is a foolproof process unless some judge throws it out on a technicality. The council and city attorney have had months to correct any legal flaws in the recall procedures. If sufficient valid signatures are obtained and it ends up being invalidated in court, I don't think I'd like to be a San Diego elected official at that point.

Don Wood
Don Wood

As I read this, VOSD is saying "the city attorney's office says it doesn't intend to enforce existing city laws related to recalls, so everything is hunky-dory". Maybe VODS should consult its own lawyers instead of taking the city attorney's word as golden. Jan Goldsmith has been acting more like a politician than an attorney in this whole affair, making it clear that he's more than willing to ignore or violate city laws and the city charter if that's what it takes to reach his goal of forcing the mayor out of office by any means necessary.

Don Wood
Don Wood subscriber

As I read this, VOSD is saying "the city attorney's office says it doesn't intend to enforce existing city laws related to recalls, so everything is hunky-dory". Maybe VODS should consult its own lawyers instead of taking the city attorney's word as golden. Jan Goldsmith has been acting more like a politician than an attorney in this whole affair, making it clear that he's more than willing to ignore or violate city laws and the city charter if that's what it takes to reach his goal of forcing the mayor out of office by any means necessary.

David Crossley
David Crossley

What happens to the recall petitions may not matter now--the U-T is reporting there is a deal with Filner, which should be announced on Friday, but it's almost to the point of "I'll believe it when I hear it".

Randy Dotinga
Randy Dotinga

Who would have standing to sue? i.e., whose rights would be violated by the existence of language that's unconstitutional and unenforced?

David Crossley
David Crossley subscriber

What happens to the recall petitions may not matter now--the U-T is reporting there is a deal with Filner, which should be announced on Friday, but it's almost to the point of "I'll believe it when I hear it".

Randy Dotinga
Randy Dotinga memberauthor

Who would have standing to sue? i.e., whose rights would be violated by the existence of language that's unconstitutional and unenforced?

Brian Flynn
Brian Flynn

Filner would have standing to sue. The frightening thing here is that Goldsmith blatantly said that he's not going to uphold his oath of office and enforce the charter. Might have to start a recall on him.

Brian Flynn
Brian Flynn subscriber

Filner would have standing to sue. The frightening thing here is that Goldsmith blatantly said that he's not going to uphold his oath of office and enforce the charter. Might have to start a recall on him.