Attorneys Fred Woocher and Bruce Henderson haven’t yet decided if they will appeal the Feb. 2 San Diego Superior Court ruling dismissing their arguments that Donna Frye, and not Dick Murphy, should be San Diego’s mayor.
If they do go forward, both believe that they might have a better chance in an appellate court.
“There is a tremendous distinction between Superior Court judges and appellate court judges,” said Henderson, a former San Diego city councilman. “Superior Court judges make their decisions on the best set of rules to apply. Appellate judges are more concerned with legal precedent, how it all fits in with case law. They are more picky on these sorts of issues I’ve raised.”
At issue: Registrar of Voters Sally McPherson refused to count some 5,551 write-in ballots for Frye where the accompanying bubble was not filled in. Had she done so, Frye would have racked up 3,443 more ballots than Murphy and presumably won the race. Henderson argued that since the city charter should prevail, and the city code doesn’t mandate bubbles, the votes should be counted. Judge Michael Brenner disagreed, ruling that the law was clear: The bubbles had to be filled in, in accordance with state law, and those who had failed to do so had not officially voted.
Brenner, from Orange County, was assigned to the case after Superior Court judges recused themselves to avoid the appearance of bias. Murphy served as a judge in the court before his 2000 election.
While Woocher said he doesn’t believe Brenner was biased, he added, “The judge had his view from the beginning and we were unable to persuade him to recognize certain aspects of this case. You have to appreciate the context, and he was not willing to hear what the larger context was. The law is a funny thing. You can have different views of the same bodies of law. Some are empowered to make the decisions, and others only to argue their positions.”
Mitch Mitchell, vice president of public policy and communications for the San Diego Regional Chamber of Commerce, agrees with Brenner’s ruling.
“I always believed that the law was fairly clear,” he said. “In order for a vote to be counted, the bubble has to be filled in. At this point, we’re hoping that these distractions and lawsuits will go away. We have a city with problems, and it’s time to look forward, not backward.”
Henderson said his decision on whether to appeal might hinge on what Woocher decides to do.
“We had an extremely simple case, requiring almost no documentation,” Henderson said. “Then Woocher came in with some excellent arguments, so you have a huge record there. It puts me in a position that it’s difficult to appeal all of this, just from a logistical point of view. It all gets mixed up.”
Said Woocher, “I’ve been more focused on constitutional issues, but I think that he shares those views, and it makes sense to coordinate on follow-up actions.”
Henderson’s argument focuses on the city’s charter, which, he said, gives the city control over its elections. When the City Council voted to consolidate its Nov. 2 general election with the state’s election, the city never waived its election rights, he said. And if that’s true, said Henderson, another major issue in the dispute should be deemed irrelevant: those infamous bubbles.
“When Brenner made that leap of logic, he declined to address our argument,” said Henderson. “Brenner looked at this, the consolidation issue, and didn’t feel the need to go beyond that.”
Attorney Bob Ottilie, who represented Murphy in court, dismisses the city vs. state argument as “goofy.”
“The consolidation statute in this state goes back decades,” he said. “The city doesn’t have to consolidate, but it saved $2 million by consolidating.”
Once you agree to consolidate, said Ottilie, you must then comply with state law, including the counting of votes.
While Ottilie said he’s concerned about any “misconceptions that we have snookered everybody,” he still would like to see an end to the battle.
“It should end here,” he said. “This election has been challenged in five different lawsuits, resulted in nine different court rulings, 14 different judges have made rulings in this case, and not once have any of those rulings found any problems with the validity of the election.”
Murphy, in a prepared statement issued Feb. 2, echoed Ottilie’s remarks.
“I’m pleased with the judge’s ruling today,” he said. “I believe it is a correct interpretation of the law. I would hope we would now put these legal challenges behind us. It’s time to focus on solving the city’s problems. It’s time to work together.”
For her part, Frye said she’s already busy addressing the city’s problems, including the troubled pension system, budget issues and open government.
“The election stuff hasn’t had a lot of traction, frankly, at least on me,” she said. “It’s been below my radar screen.”
Although Frye is not a formal party to any of the lawsuits that have come up in her support, she has no problems with the attorneys filing an appeal.
“If Fred thinks that there were legal issues not addressed, I think it’s worth it,” she said, adding that she has no plans to concede.
“Concede from what?” said Frye. “That I agree with the judge’s interpretation? That will not happen.”
As for the larger issues in the case, she said, “It really taught me that even though we have the right to vote, we do not have the right to have our votes counted. That to me is the most alarming thing that I learned and that I plan to do something about. I will continue to work with state legislators to try to get these issues addressed, to have the ballot very easy for people to use.”
Woocher said that he hopes to make a decision soon on an appeal, but he admits that, financially, it’s been “a big drain.” He estimates that, at this point, the case has cost him $100,000, and he’s trying to raise funds through a locally formed organization called “Count Every Vote” to help cover expenses.
“Up until now, I haven’t had the chance to worry about that,” said Woocher.
Carl DeMaio, the president of the San Diego-based Performance Institute, a government reform think tank, declined to say who he’d like as mayor, adding, “It’s only my opinion, and opinions are like armpits , everyone has one or two.”
Having said that, however, DeMaio added, “The public clearly prefers Frye over Murphy, she has the public support and she has been a lot more candid than the mayor about financial issues. She rode that wave of voter discontent. Regardless of the outcome, if she is not mayor, she should continue doing what she is doing.”
The main concerns facing the city continue to be about the bottom line, he said.
“The financial issues are what they are, regardless of personality, regardless of who’s in the office of mayor,” he said. “Frye would shake things up, but I don’t think the courts would overturn the election.”
Frye said that she’s not getting discouraged.
“No, although it does tire me out sometimes,” she said. “I might get a little frustrated. But it keeps me in the spirit to do something about it. Patience is power, and I am very patient.”
Frye added this postscript on Feb. 3: “Yesterday, the (City Council) Rules Committee voted to ban outright any more write-ins in general elections.”
Who chaired the committee?
When it comes before the full council, will she oppose it?