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Recall May Get Second Hearing

Federal appeals court seeks arguments on whether it should reconsider delaying the election. The case would go to a larger panel.

September 17, 2003|Mitchell Landsberg and Henry Weinstein | Times Staff Writers

The turmoil and uncertainty surrounding California's recall election appear likely to last at least a week, legal observers said Tuesday, as the U.S. 9th Circuit Court of Appeals sought arguments on whether it should reconsider an order postponing the vote until March.

As the judges pondered what to do next, voters expressed widespread cynicism about the motives of a three-judge panel that ordered the postponement Monday.

Despite the ruling, candidates continued their campaigning. Gov. Gray Davis appeared in the morning with Democratic presidential candidate Sen. Bob Graham in Los Angeles and in the afternoon with the Rev. Jesse Jackson in San Francisco. Davis, Arnold Schwarzenegger and Lt. Gov. Cruz Bustamante kept raising money at a brisk pace -- each collected hundreds of thousands of dollars Monday -- while state Sen. Tom McClintock's campaign appeared to be struggling for contributions.

Meanwhile, frustrated election officials expressed fresh outrage over the taxpayer dollars that would be wasted if the postponement stands and they are forced to scrap their Oct. 7 election plans. Interviews throughout the state suggest that California and its 58 counties have already spent at least half of the $66 million that the recall is expected to cost.

"We're taking away from other programs to pay for this," said Mischelle Townsend, Riverside County's registrar. "It's unconscionable."

Unconscionable, pitiful, stupid -- there was little mincing of words as people pondered the chain of unlikely events that have sent California's political establishment on a never-ending Tilt-a-Whirl.

"It's all kind of like a soap opera," said Fred Strame, a San Francisco financial consultant who was perusing a newspaper in the sun before lunch Tuesday. "It's one stupid thing after another, or like an accident that you want to watch."

Tuesday morning, the 9th Circuit issued an order saying it had asked all the parties in the recall case to file briefs by 2 p.m. today setting forth their views about whether the court should rehear the case with a larger panel of 11 judges -- an "en banc" panel. The order was signed by Judge Sidney R. Thomas, who is the court's en banc coordinator, and one of the authors of Monday's ruling.

Under 9th Circuit rules, any of the court's judges has the power to request such a hearing, even before any of the parties in the case makes such a request.

Secretary of State Kevin Shelley said he would ask the panel to reverse Monday's decision, permitting the election to go forward as planned Oct. 7.

In a statement issued by his office, Shelley said he believed it was "in everyone's best interest that this case be heard swiftly and considered thoroughly, so the court can resolve these legal issues with the finality that the voters expect and deserve."

The court rarely grants rehearings. Last year, the 9th Circuit issued 5,000 decisions on the merits of cases. The court received 1,039 requests for en banc hearings and granted 17, according to court officials.

Although there is normally a lengthy period for the judges to exchange legal memos on whether to rehear a case, court observers said the 9th Circuit could move very fast -- for judges at least -- in a case involving such urgency.

The observers said they thought the court could complete a vote by Friday on whether to rehear the case. If a majority of the judges voting decides to reconsider, a hearing could be held as soon as Monday and a ruling could be rendered by the middle of next week, the observers said.

Court officials have issued no formal schedule yet.

In Sacramento, the man who launched the recall drive to oust Davis told reporters that his lawyers would file a brief with the 9th Circuit, asking that the matter be sent directly to the U.S. Supreme Court.

Ted Costa, a longtime anti-tax activist who drafted the recall petition, called the decision to put the election on hold an outrage -- "the kind of thing that happens in South American countries before they get rid of elections altogether."

He also predicted that the decision would have "a tremendous chilling effect" on anyone who wanted to use the recall process and who then would have to "go and kiss the rings of three judges over in the court of appeal."

But Costa's lawyer, Charles P. Diamond of Los Angeles, said he and Costa "were not on the same page." Told of his client's remarks, he said he thought he had a good chance of getting the ruling reversed by the 9th Circuit.

Lawyers for the American Civil Liberties Union, which sought the postponement, also said they would be filing a brief -- but theirs would be urging the 9th Circuit not to rehear the case.

ACLU attorney Ben Wizner said he thought that the three-judge panel that ordered the election postponed "got it exactly right." The decision, he said, described "substantial deprivations of constitutional rights" if the election went ahead as scheduled.

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