 NANCEE E. LEWIS/Union-Tribune City Clerk Charles Abdelnour smiled as Judge Charles E. Jones announced his ruling yesterday. |
A Superior Court judge gutted an attempt to invalidate the San Diego mayoral election yesterday by ruling that Donna Frye's write-in candidacy is legal and refusing to order a halt to the vote-counting.
Judge Charles E. Jones also turned aside requests from San Diego business lawyer John Howard to prevent the election results from being certified and to order a new election without Frye.
Jones said opponents of the write-in waited too long to challenge the legitimacy of Frye's write-in candidacy. The write-in votes, most of which have been for Frye, have a slight lead over Mayor Dick Murphy with thousands of ballots still to count.
Howard said afterward he may appeal the decision to the San Diego-based 4th District Court of Appeal. He doubted, however, that any appeal could be heard before the county Registrar of Voters would tally the final votes.
The suit centered on a conflict between the city charter, which says the top two finishers from the primary face off in a runoff election, and the municipal code, which since 1985 has allowed write-ins.
Howard argued that the charter trumps the code, because it is the constitution of the city. Jones noted the conflict but did not address it directly.
He said the charter does not explicitly prevent write-ins, though he acknowledged that such a ban could be inferred from the language in the document. He also said the municipal code should be given some weight because it is the legislative record of city government.
But the weight of his decision rested on his conclusion that Howard waited too long to bring his legal challenge. Howard is a supporter of third-place finisher Ron Roberts, a county supervisor who said Howard is acting independently.
The suit was filed Nov. 8 – six days after the voting and more than a month after Frye's highly publicized campaign was given the green light to get on the ballot by City Clerk Charles Abdelnour.
Jones said that no one objected to Frye's candidacy then, noting that the other two candidates, the city attorney and others all "sat mute" while the campaign began and continued for five weeks.
It was, Jones said in a comment that caused a ripple of laughter through a courtroom packed with lawyers, political observers and media, "just the sound of silence," referring to a popular Simon and Garfunkel song.
Only after the voting, when it appeared the write-in might win, was an objection raised, Jones said. The judge invoked a legal doctrine known as "laches," which penalizes a party in a lawsuit who neglects to assert a claim in a timely manner, to the disadvantage of the other party in the suit.
Frye's attorneys raised the same objection to Howard's suit in papers filed yesterday morning.
Jones concluded that Howard had "slept on his rights, or sat on his rights," and should have come forward earlier.
The judge also said that Frye was entitled to the same protections under the law that numerous other write-in candidates have been given for almost two decades under the municipal code.
"Whatever the results of the election may be," Jones said, "let the people be heard on it."
Outside of court, Howard said he did not come forward earlier in part because he was not "appointed guardian of the city," and continued to insist that the suit was not "sour grapes" over the vote outcome, as Frye alleged last week.
"I'm disappointed with the ruling," he said. "This is a legal issue, not a political issue." He said what was at stake was whether the city had a charter "that means something."
Howard said he was troubled by Jones' assertion that the charter is not the constitution of the city – a key part in his argument. He said the state Supreme Court has said the charter functions like the constitution of a city.
Jones, a retired judge, was appointed to hear the case last week after all 124 judges were recused by Superior Court Presiding Judge John Einhorn to avoid the appearance of any conflict or bias.
Murphy spent 15 years as a judge before being elected mayor in 2000.
Abdelnour, who has been criticized for allowing Frye on the ballot, said he felt "relieved and vindicated" by the ruling.
The ruling came as county workers continued to plow through the untabulated votes, and the race continued to tighten. The write-in vote – most of it is expected to be for Frye – clung to a slim lead over Murphy, 34.7 percent to 34.3 percent.
Attorneys in the case said they were surprised that Jones' ruling reached as far as it did. While he did not dismiss the case, Jones strongly indicated that he did not think Howard could prevail and the merits of the case were lacking, said Assistant City Attorney Les Girard.
In its papers, the city, defending Abdelnour, argued that Howard's suit could not go forward because the state Elections Code specifies the process for challenging elections. The code specifically says that the vote count must be completed before a challenge can be undertaken.
At City Hall, Frye thanked the judge for "standing up for the public and their right to actually hold an election and vote for who they want to and actually write in somebody's name on a ballot."
Murphy said he agreed with Jones' ruling. "I opposed the lawsuit because I think that we should let the Registrar of Voters determine who won the popular vote," he said. "I think that's the fairest way to do that."
Roberts, who trails with about 31 percent of the vote, issued a short statement saying he was glad that "we are one step closer to resolving this election so that we as a community can heal and move forward with addressing the many challenges facing our city today."
A federal court lawsuit filed by Roberts supporters, essentially arguing the same theory as the state suit, was filed last week. No hearing date has been set yet in that case. Also yesterday, Jones allowed Larry Stirling, a former city councilman, state legislator and judge, to file a brief in the case.
Stirling contends that in the event no candidate receives a majority of votes, the charter requires that the mayor's office become vacant and gives the council 30 days to either fill the vacancy by appointment, or call for a new election. He said that if Howard appeals he would seek to argue those points in front of the appeals court.