Filed 3/26/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

AARON PERSKY,

Plaintiff and Appellant,

v.

SHANNON BUSHEY,

Respondent;

MICHELE DAUBER, et. al.,

Real Parties in Interest;

ALEX PADILLA,

Intervener and Respondent.

 H045129

 (Santa Clara County

 Super. Ct. No. 1-17-CV-314311)

Appellant Aaron Persky, a superior court judge in Santa Clara County, is the 

subject of a recall effort initiated by Michele Dauber and 19 others, real parties in interest 

in the underlying proceedings. Judge Persky unsuccessfully sought writ relief to enjoin 

the circulation of the recall petition on the ground that it should have been filed with the 

California Secretary of State, not the Registrar of Voters. On appeal, Judge Persky 

maintains that a writ of mandate should have been granted, because a judge of the 

superior court is a state officer who can be recalled only by a petition reviewed and 

certified for circulation by the Secretary of State. We find no procedural error and 

therefore must affirm the order.
2

Background

Judge Persky was appointed to the superior court bench in 2003 and has been 

reelected thereafter, most recently in 2016. On July 10, 2017, Dauber and the 19 other

individuals (hereafter, Real Parties or the proponents) submitted a “Petition for Recall of 

Judge Aaron Persky” to the Registrar, Shannon Bushey. Judge Persky’s attorney, Mark 

S. Rosen, responded, asserting several flaws in the proposed petition, primarily that 

(1) under the California Constitution the Secretary of State, not the Registrar, was the 

proper elections official for recall of state officers; and (2) the petition contained an 

“incorrect and misleading” demand for an election to choose a successor, because a 

vacancy would actually be filled by the Governor’s appointment. On behalf of the 

Registrar, County Counsel disagreed with both points advanced by Rosen.

An amended recall petition was submitted to the Registrar on August 1, 2017, and 

eight days later it was approved for circulation.

1

 The proponents were given 160 days to 

circulate the petition, giving them through January 16, 2018 to collect signatures. The 

Registrar advised the proponents that they needed 58,634 signatures of registered voters 

in the jurisdiction, which equaled 20 percent of the votes cast in the November 2014 

election for Judge Persky’s office.

On August 11, 2017, Judge Persky filed an ex parte application for a temporary 

restraining order (TRO) and “Order to Show Cause Why Peremptory Writ Should Not 

Issue.” He asked the superior court to compel the Registrar (1) to withdraw certification 

of the recall petition and refer the matter to the Secretary of State “as the officer with 

 

1

In addition to Dauber, the proponents named in the amended petition were 

Magdalena G. Carrasco, Grace H. Mah, Robert Livengood, Raul Peralez, Richard Tran, 

Gary Kremen, Patrick J. Burt, Amado M. Padilla, Shanta Franco-Clausen, Yan Zhao, 

Jennifer Briscoe, Suzanne E. Doty, Allan Seid, M. Viera C. Whye, Kavita Tankha, 

Sophia Yen, Gabriel Manjarrez, Steve Ko, and Paulette Altmaier. Two of these names 

were spelled differently in Judge Persky’s writ petition, but no legal issue appears to have

arisen from any misspelling.
3

proper jurisdiction over the recall of [s]uperior [c]ourt judges”; (2) to enjoin circulation 

of any recall petition until the Secretary of State certified it for circulation; and (3) to 

enjoin circulation while the recall petition contained the allegedly misleading statement 

demanding the election of a successor. That day the Honorable Marjorie Laird Carter 

(a retired judge sitting on assignment) issued the Order to Show Cause and TRO, 

enjoining circulation of the petition pending resolution of the dispute. Judge Carter, 

however, was successfully challenged under Code of Civil Procedure section 170.6, and 

the matter was heard thereafter by the Honorable Kay Tsenin (also sitting by assignment).

Judge Persky filed his verified petition for peremptory writ of mandate the same 

day, August 11, 2017. He maintained that it was the Secretary of State, not the Registrar,

who should handle the matter, pursuant to article II, section 14, of the California 

Constitution.

2

 That provision, according to Judge Persky, designated the Secretary of 

State as the proper official to review and certify recall petitions directed at state officers, 

a category that included superior court judges. The petition also repeated the assertion 

that the demand for election of a successor was “misleading and inaccurate” in failing to 

recognize that the governor fills any vacancy left by removal of a superior court judge.

The Secretary of State, Alex Padilla, (hereafter, the Secretary) sought to intervene 

in the action, on the ground that Judge Persky’s claims implicated his “duty, as the 

State’s chief elections officer, to see that the State’s elections laws are properly 

enforced.” Over Judge Persky’s opposition, the court granted the Secretary’s application, 

and his opposition to the writ petition was filed on August 28, 2017. Both the Secretary 

and the Registrar, as well as Real Parties, maintained that the Registrar was the proper 

official to oversee the process of recalling a superior court judge, who was a “local 

officer,” not a “state officer,” under the recall election laws in place.

 

2

Further unspecified references to articles are to the California Constitution.
4

On September 7, 2017, after extensive briefing and oral argument, Judge Tsenin 

denied Judge Persky’s petition and dissolved the TRO. She determined that the Registrar 

was the proper official to review and approve recall petitions for superior court judges 

and that the recall petition submitted in this case was neither misleading nor inaccurate. 

From those orders Judge Persky filed this timely appeal.

Discussion

On appeal, Judge Persky renews his challenge to the Registrar’s participation in 

the initial process for recalling a superior court judge. He acknowledges that Elections 

Code sections 11001 through 110043prescribe the very procedure that was undertaken 

here, but he insists that those provisions cannot be reconciled with article II, section 14,

California Constitution. In response, Real Parties and the Secretary (joined by the 

Registrar) defend the lower court’s ruling as consistent with the plain language of the 

applicable Elections Code provisions. They maintain that neither article II, section 14, 

nor the history of the elections laws in this state supports Judge Persky’s assertion that he 

is a state officer subject to the Secretary’s exclusive jurisdiction over the entire recall

process.

4

1. Standards of Review

The parties agree generally on the principles governing this court’s review. There 

is no dispute about the meaning of the Elections Code provisions assigning responsibility 

for the oversight of the initial recall process. We therefore are not confronted with the 

 

3

Further statutory references are to the Elections Code except as otherwise 

indicated.

4 Real parties add that “it is noteworthy that literally no one else in the entire State 

of California agrees with his contention that trial judges must be classified as ‘state 

officers’ for purposes of the recall.” No evidence is cited for this supposed fact—nor 

could there be, since it is inconceivable that “literally” no one in this entire state agrees 

with Judge Persky’s position.
5

task of interpreting statutory language. Instead, the central issue before us is the validity

of those provisions in light of the recall procedure specified in article II, section 14.

Determining the constitutionality of a statute presents a question of law, which we 

review de novo. (People v. Health Labs. of N. Am. (2001) 87 Cal.App.4th 442, 445.) 

“All presumptions and intendments favor the validity of a statute and mere doubt does 

not afford sufficient reason for a judicial declaration of invalidity. Statutes must be 

upheld unless their unconstitutionality clearly, positively and unmistakably appears.” 

(Lockheed Aircraft Corp. v. Superior Court of Los Angeles County (1946) 28 Cal.2d 481, 

484; see also People v. Globe Grain & Milling Co. (1930) 211 Cal. 121, 127 [a statute is 

presumed to be constitutional and “will be given a construction consistent with validity if 

at all possible”].) “ ‘Invalidating legislation is serious business,’ ” and we cannot 

construe a statute “contrary to legislative intent merely to eliminate a potential 

constitutional conflict.” (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826, quoting Morey 

v. Doud (1957) 354 U.S. 457, 474 (dis. opn. of Frankfurter, J.).) A challenge to the facial 

constitutionality of a statute cannot be sustained unless the statutory terms “inevitably

pose a present total and fatal conflict with applicable constitutional prohibitions.” 

(Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 181.)

Judge Persky’s assertion that the applicable Elections Code provisions are 

unconstitutional rests on the application of article II, section 14, a provision enacted by 

Proposition 14 in 1976. We must examine the text of that constitutional provision, 

applying the same general principles as those on which statutory construction is based. 

(Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 122 (Thompson).) “The 

aim of constitutional interpretation is to determine and effectuate the intent of those who 

enacted the constitutional provision at issue. [Citation.] To determine that intent, we 

begin by examining the constitutional text, giving the words their ordinary meanings.” 

(Richmond v. Shasta Community Services Dist.) (2004) 32 Cal.4th 409, 418; Greene v. 
6

Marin County Flood Control & Water Conservation Dist. (2010) 49 Cal.4th 277, 290

(Greene).)

The same rules govern interpretation of constitutional provisions created by voter 

initiative. (Silicon Valley Taxpayers’ Assn., Inc. v. Santa Clara County Open Space 

Authority (2008) 44 Cal.4th 431, 444 (Silicon Valley Taxpayers); California Cannabis 

Coalition v. City of Upland (2017) 3 Cal.5th 924, 933.) “ ‘Thus, we begin with the text 

as the first and best indicator of intent. [Citations.]’ ” (Kwikset Corp. v. Superior Court

(2011) 51 Cal.4th 310, 321 (Kwikset Corp.).) “If the language is clear and unambiguous, 

the plain meaning governs.” (Silicon Valley Taxpayers, supra, at p. 444.) On the other 

hand, if the language is ambiguous, “we consider extrinsic evidence of the enacting 

body’s intent.” (Thompson, supra, 25 Cal.4th at p. 122; Greene, supra, 49 Cal.4th at 

p. 290.) If necessary, extrinsic evidence of the voters’ intent may include the analysis by 

the Legislative Analyst and the ballot arguments for and against the initiative. (Silicon 

Valley Taxpayers, supra, at pp. 444-445; Kwikset Corp. supra, at p. 321; accord, 

California Cannabis Coalition, supra, at p. 933.)

To the extent that the constitutional language does not resolve a dispute over its 

meaning, we may look to the Legislature for its interpretation. Two additional principles 

guide our inquiry: “First, the entire law-making authority of the state, except the people’s 

right of initiative and referendum, is vested in the Legislature, and that body may exercise 

any and all legislative powers [that] are not expressly or by necessary implication denied 

to it by the Constitution. [Citations.] In other words, ‘we do not look to the Constitution 

to determine whether the legislature is authorized to do an act, but only to see if it is 

prohibited.’ [Citation.] [¶] Secondly, all intendments favor the exercise of the 

Legislature’s plenary authority: ‘If there is any doubt as to the Legislature’s power to act 

in any given case, the doubt should be resolved in favor of the Legislature’s action. Such 

restrictions and limitations [imposed by the Constitution] are to be construed strictly, and 

are not to be extended to include matters not covered by the language used.’ [Citations.] 
7

Conversely, a constitutional amendment removing those restrictions and limitations 

should, in cases of doubt, be construed liberally ‘in favor of the Legislature’s action.’ ” 

(Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691, quoting Fitts v. 

Superior Court (1936) 6 Cal.2d 230, 234; see also California Redevelopment Assn. v. 

Matosantos (2011) 53 Cal.4th 231, 254, fn. 7 [unlike Congress, which has only the 

powers expressly granted by the federal Constitution, “the Legislature has all legislative 

powers except those that are expressly withdrawn from it”].) These tenets are 

particularly compelling in this case, as the Legislature has interpreted the relevant 

provisions of the California Constitution as permitting it to designate superior court 

judges as local officers when they are the objects of recall petitions. Judge Persky

therefore has a heavy burden to show that the Legislature “missed or misunderstood” the 

constitutional provisions authorizing the Legislature to prescribe the procedures for 

certifying and circulating petitions to recall trial court judges. (Art. II, §§ 16, 19.)5

 

5

The parties debate the significance to be accorded the Secretary’s interpretation 

of the disputed constitutional provisions. This is not a case involving interpretation of an 

agency’s own quasi-legislative rules or regulations; we therefore do not apply a narrow 

scope of review, overturning its interpretation only if it is arbitrary, capricious, or 

irrational. Instead, where, as here, the agency contributes its interpretation of a statutory 

or constitutional provision, we regard that interpretation as only the agency’s “legal 

opinion, however ‘expert,’ ” which “commands a commensurably lesser degree of 

judicial deference,” even though it “may possess special familiarity with satellite legal 

and regulatory issues.” (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 

Cal.4th 1, 11.) In such cases the weight accorded the agency’s interpretation is 

“fundamentally situational”; it depends on “complex factors material to the substantive 

legal issue before it, the particular agency offering the interpretation, and the comparative 

weight the factors ought in reason to command.” (Id. at p. 12.) We must therefore 

consider an agency’s interpretation as “one among several tools available to the court. 

Depending on the context, it may be helpful, enlightening, even convincing. It may 

sometimes be of little worth.” (Id. at pp. 7-8.)
8

2. Constitutionality of the Statutory Recall Procedure

Real Parties submitted their petition to the Registrar in accordance with the 

procedures outlined in division 11, chapter 1, of the Elections Code. To initiate the recall 

of any “elective officer,” the proponents (who must be registered voters of the applicable 

electoral jurisdiction) must serve, file, and publish a notice of intention to circulate a 

recall petition, in accordance with a prescribed format. (§§ 11006, 11020-11022.) After

a copy of the notice of intention is served on the officer, the original must be filed with 

the elections official—or, in the case of a “state officer,” with the Secretary of State. 

(§ 11021.) The petition itself must comply with specified format and content 

requirements.6 (§§ 11040-11043.5.) Once the elections official (or Secretary of State) 

approves the petition as compliant with all technical and substantive requirements, 

signatures may be collected from registered voters in the applicable jurisdiction.

(§§ 11042, 11045.)

Sections 11001-11005 identify the participants in these initial steps. The 

proponents of the recall “must be registered voters of the electoral jurisdiction of the 

officer they seek to recall.” (§ 11005.) When the object of the proposed recall is a judge 

of a trial court, the “elections official” is the “county elections official” (§ 11002), and 

the “governing board” is the county board of supervisors (§ 11003). At issue in this case 

are the designations contained in sections 11001 and 11004. Under section 11001, Court 

of Appeal justices are deemed state officers, whereas “judges of trial courts shall be 

 

6 One of those requirements is a request for an election to name a successor to the 

recalled officer. The request must instead be for the Governor to appoint a successor if

the officer to be recalled is a Supreme Court or Court of Appeal justice. (§ 11041, 

subd. (a)(1).) On appeal, Judge Persky has not renewed his claim that the petition at issue 

is misleading or inaccurate by failing to request appointment of a successor by the

Governor.
9

considered county officers.” A trial court judge is also classified as a “local officer” in 

section 11004.

The distinction between appellate justices and trial court judges determines the 

steps that are taken once a recall petition is filed. Sections 11100-11110 pertain to the 

recall of state officers. In conjunction with the general provisions set forth in chapters 1 

and 4 of division 11 of the Elections Code and with article II of the Constitution, those 

sections prescribe the filing of the petition with the elections official in the county of 

circulation, the verification of signatures, and the elections official’s periodic report to the 

Secretary of State of the number of verified signatures accumulated to date. (§§ 11102, 

11104.) Once a sufficient number of valid signatures have been collected, the Secretary 

certifies that fact to the Governor, who then must publish notice of the election.

(§§ 11109, 11110.)

In the case of a local officer, sections 11220-11227 address the specific 

requirements for qualification of a recall petition for the ballot, the filing of the petition, 

the method of ascertaining the number of valid signatures to merit certification to the 

governing body, and the scheduling of the recall election.

It is clear that the statutory process for initiating and conducting a recall of a 

“local officer” was expressly made applicable to recall of a superior court judge. 

Section 11004 states: “For the purposes of this division, a ‘local officer’ is an elective 

officer of a city, county, school district, community college district, or special district, or 

a judge of a trial court.” (Italics added.) Section 11001 states: “For the purposes of this 

division, judges of courts of appeal shall be considered state officers, and judges of trial 

courts shall be considered county officers.”

Judge Persky, however, contends that these provisions conflict with the California 

Constitution. By including superior court judges in the legislative definition of “local” 

and “county” officer, he argues, the Legislature “appears either to have missed or 

misunderstood the relevant constitutional provisions.” Judge Persky relies specifically on 
10

article II, section 14, which states: “(a) Recall of a State officer is initiated by delivering 

to the Secretary of State a petition alleging reason for recall. Sufficiency of reason is not 

reviewable. Proponents have 160 days to file signed petitions. [¶] (b) A petition to 

recall a statewide officer must be signed by electors equal in number to 12 percent of the 

last vote for the office, with signatures from each of 5 counties equal in number to 

1 percent of the last vote for the office in the county. Signatures to recall Senators, 

members of the Assembly, members of the Board of Equalization, and judges of courts of 

appeal and trial courts must equal in number 20 percent of the last vote for the office. 

[¶] (c) The Secretary of State shall maintain a continuous count of the signatures 

certified to that office.” (Italics added.)

It is the italicized words above that are the focus of the parties’ dispute. 

Judge Persky contends that “the plain meaning of the constitutional language at issue 

clearly and unambiguously classifies trial judges as ‘state officers.’ ” He relies on 

subdivision (b) of article II, section 14, which specifies the number of signatures

necessary to qualify the recall petition for the ballot. In his view, the signatures must 

equal 12 percent of the last vote for the office in the case of a “statewide” officer, 

whereas 20 percent is necessary for “other state officers, including trial judges.”7

But article II, section 14, subdivision (b), does not identify trial judges as “other 

state officers.” Its subject is confined to the required number of signatures: Thus, for 

recall of a statewide officer—one elected to office across multiple subdivisions within the 

state—the petition must garner signatures amounting to 12 percent, whereas certain other 

 

7

Judge Persky also argues that the superior court “misunderstood the distinction 

between ‘statewide officers’ and ‘state officers’ in article II, section 14.” It does appear 

that the court below misstated Judge Persky’s claim as one identifying himself as a 

statewide officer; that mischaracterization, however, is of no consequence to the 

resolution of the issue before us, whether Judge Persky is a state officer under the recall 

provisions of our Constitution.
11

officers—identified specifically as senators, assembly members, members of the Board of 

Equalization, and judges of the Courts of Appeal and trial courts—cannot be removed by 

recall unless the 20 percent threshold is obtained.

There is no provision in the California Constitution that defines “state officer” to 

include a superior court judge, either directly or implicitly, for purposes of the state’s 

recall procedure—or, for that matter, for all purposes, even while it is used in a variety of

contexts. (See, e.g., art. III, § 8 [defining “state officer” regarding establishment and 

adjustment of state officer compensation without including members of the judiciary;

art. XIII, § 32 [precluding action against state or “any officer thereof” to enjoin collection 

of tax]; art. IV, § 18 [impeachment of “[s]tate officers elected on a statewide basis . . . 

and judges of state courts”]; art. III, § 7 [specifically excluding judges in restricting 

retirement benefits for “elective officer of the state whose office is provided for by the 

California Constitution”]; art. V, § 14 [judicial offices omitted from list of offices subject 

to restriction on acceptance of gifts and honoraria by “state officer”].) Nor do we see any 

intimation of a definition in article II that is contravened by the Legislature’s detailed 

instructions for initiating and conducting recall elections for superior court judges as local 

officers. Article II, section 16, accords the Legislature the express authority to “provide 

for circulation, filing, and certification of petitions, nomination of candidates, and the 

recall election.” The Legislature has acted on that authority through the extensive 

procedures set forth in division 11 of the Elections Code.8

 

8

These extensive procedures belie Judge Persky’s assertion that if superior court 

judges were intended to be classified as local officers, “there would be no need to further 

instruct the Legislature to ‘provide for’ recall of local officers [in article II, section 19], 

because section 14 already ‘provides for’ recall of the officers listed in that section.” 

Article II, section 14, covers only a small part of the recall process, the delivery of the 

petition and the number of signatures required for its certification.
12

Because the plain language of article II, section 14, does not conflict with the 

recall provisions of the Elections Code, it is unnecessary to delve deeply into the history 

of that constitutional provision beginning in 1911, notwithstanding Judge Persky’s 

suggestion to the contrary.

9 We do note, however, that when article II, section 14, was 

added to the Constitution by Proposition 14 in June 1976, it replaced article XXIII, 

section 2, which had been added by Proposition 9 in 1974.10 Proposition 14 was itself the 

product of an Assembly resolution. (Assem. Const. Amendment No. 40, Stats. 1976 

(1975-1976 Reg. Sess.) res. ch. 5, pp. 6651-6664, and res. ch. 24, pp. 6682-6683).

The 1974 version of former article XXIII contained the identical references to recall of a 

“State officer” and the same required percentages for “statewide” officers (12 percent) 

and “judges of courts of appeal and trial courts” (20 percent) as in the current version, 

subdivision (b) of article II, section 14.

11

 (Former art. XXIII, § 2, subd. (b).) Thus, there 

 

9 On appeal Judge Persky maintains that the “express” constitutional language at 

issue “unambiguously” classifies trial judges as state officers; consequently, “there is no

need for construction.” Yet he also contends that Judge Tsenin “gave inadequate weight 

to the history of the recall provisions and their evolution from 1911 to the present.”

10 Proposition 9 was the result of a resolution by the Assembly to propose the 

repeal and re-enactment of former article XXIII. The proposition was explained to the 

voters as one intended to clarify the recall procedures, prescribe the required number of 

signatures, eliminate the six-month period in which the officer is safe from recall, and 

limit the signature-gathering period to 160 days.

11 The previous version of article XXIII, section 1, originally in 1911, dictated the 

procedure to require 12 percent for recall of an “elective public officer,” but “if the 

officer sought to be removed is a state officer who is elected in any political subdivision 

of the state,” 20 percent was required. Judge Persky suggests that by construing 

subdivisions (a) and (b) of article II, section 14, together, the intent of the voters would 

be expressed consistently with the 1911 version, recognizing officers elected in the state 

at large (now “statewide”) along with (or, in Judge Persky’s view, as distinguished from) 

state officers elected in a political subdivision of the state. We cannot endorse the 

premise that the amendments in 1974 and 1976 were intended to set forth the same 

procedural distinctions in different words. The Legislature and the electorate are 

presumed to know what they were replacing when they amended article XXIII in 1974. 
13

is no indication that the recall procedures prescribed in former article XXIII, section 2, 

were intended to be nullified or displaced with the adoption of article II, section 14.

The voters in Proposition 14 also approved article II, section 16, which—like its 

predecessor, former article XXIII, section 4—directs the Legislature to “provide for 

circulation, filing, and certification of petitions, nomination of candidates, and the recall 

election.” As noted, the applicable Elections Code provisions, also enacted in 1976 as 

division 14, were consistent with that mandate. (Former §§ 27000 et seq., Stats. 1976, 

ch. 1437, p. 6439). Article II, section 19, likewise contains the same language as in 

former article XXIII, section 7; it delegates to the Legislature the management of the 

recall of “local officers.” We see no indication that when article II, section 19, was 

adopted in 1976, superior court judges were intended to be an exception to the existing 

legislative classification of “trial court judges” as “county” or “local” officers.12

The Elections Code has evolved consistently with the recall provisions of our 

Constitution. Before 1974 the Elections Code divided its recall provisions, contained in 

division 14, into those applicable to state officers (former §§ 27000-27004), county 

officers (former §§ 27200-27216), and municipal officers. (Former §§ 27500-27521, 

Stats. 1961, ch. 23, pp. 862-869,). “County officer” was defined to exclude members of 

the state senate and assembly as well as judicial officers; and the term “judicial officer” 

encompassed every level from the Supreme Court down to a justice court. 

(Former §§ 35, 31.) An election could be either statewide (“held throughout the state”) 

or local (“municipal, county, or district”). (Former §§ 27, 28.) State officers were 

 

Evidently they purposefully discarded the language of the 1911 removal provision when 

they chose to specify the offices to which the 20-percent threshold was to apply.

12 The predecessor to section 11004 (including trial court judges in the category of 

“local officer”) was former section 27005 (Stats. 1976, ch. 1437, § 4, p. 6439), which 

contained the identical language as the current provision. The predecessor to 

section 11001 (“judges of trial courts shall be considered county officers”) was former 

section 27001, which likewise contained the identical language.
14

recalled according to chapter 1 of division 14 of the Elections Code, without a specific 

definition of “state officer” for that purpose. (Former §§ 27000-27004.) “County

officers” were recalled under chapter 2 of that division (former §§ 27200-27216); 

it provided for recall of the “holder of any elective office of any county or of any 

district,” where “district” expressly included judicial districts. (Former §§ 27200-27201.) 

A petition for recall of an elective officer of any county or of any district had to be filed 

with the “county clerk,” which meant “registrar of voters” in counties that had such a 

title. (Former §§ 17, 27202, Stats. 1961, ch. 23, pp. 583, 862.)

When article II, section 14, was adopted in June 1976, its references to judges of 

“trial courts” (signatures must equal 20 percent) necessarily encompassed municipal and 

justice court judges, who indisputably could not have been deemed state officers whose 

recall had to be initiated under the management of the Secretary of State.13 Judge Persky

contends, however, that municipal and justice court judges were treated differently from 

those on the superior court bench before the passage of Proposition 9 in 1974. He points 

out that the pre-1974 Elections Code defined “judicial district” without specifically 

referring to superior courts, while it did include municipal and justice court districts.

(Stats. 1961, ch. 23, § 37, p. 584.) Likewise, “Inferior court” was defined to include 

municipal and justice courts. (Stats. 1961, ch. 23, § 38, p. 584.)

 

13 In 1950 voters passed Proposition 3, which reduced the number of inferior 

courts from six to two, with municipal courts to occupy districts with a population 

exceeding 40,000 and justice courts to occupy districts of 40,000 or fewer. In November 

of 1994, Proposition 191 eliminated the office of justice courts by incorporating them 

into municipal courts. Then, with the passage of Proposition 220 in June 1998, 

consolidation of the municipal and superior courts occurred. Thus, trial courts included 

municipal courts and justice courts when article II, section 14, was adopted in 1976. Like 

its predecessor, former article XXIII, section 2, article II, section 14, includes 

subdivision (c), which directs the Secretary of State to maintain an ongoing count of the

signatures certified to the office. There is no indication that this obligation was not 

intended to apply to recall of all trial courts, including municipal and justice courts.
15

Judge Persky’s analysis of pre-1974 language defining “judicial district” is not 

helpful. That the definition of “judicial district” did not explicitly mention superior 

courts signifies nothing; it only clarified that municipal and justice courts were included

in that definition. The word “includes” is not synonymous with “means” or “constitutes.” 

Thus, the statutory term clearly did not exclude other districts in which courts sit. It was 

not unreasonable for the judge in this case to infer that “judicial district” encompassed the 

districts of all trial courts. (Cf. Fassberg Construction Co. v. Housing Authority of City 

of Los Angeles (2007) 152 Cal.App.4th 720, 735 [“The term ‘includes’ in a statutory 

definition does not necessarily exclude things not specified” but “ordinarily is a term of 

enlargement rather than limitation”].)

Judge Persky suggests, however, that “the Legislature did not mean to include the 

Supreme Court, Court of Appeal, or Superior Courts in its definition of ‘Judicial district’ 

in the pre-1974 Elections Code.” Even if that inference is correct, there is no indication 

that in 1976 the initial steps in the recall process, delineated in the current division 11, 

chapter 1, of the Elections Code, were intended to distinguish superior court judges from 

municipal and justice court judges. Nor is there anything significant about the exclusion 

of superior court judges as judicial officers from the class of “county officer” in the 

pre-1974 Elections Code; the label “judicial officer” applied to all judges and justices at 

every level of the judiciary, and thus none were deemed county officers. (Stats. 1961, 

ch. 23, §§ 31, 35, pp. 583-584; Stats. 1967, ch. 17, § 24, p. 833.)

Judge Persky nonetheless discounts the significance of the municipal courts in the 

state’s judicial structure: “The municipal courts came and went after the constitutional 

recall provisions, and the amendments to the recall provisions do not appear to have 

taken any notice of them. None of the various iterations of the constitutional recall 

provisions ever mentioned municipal court judges specifically.” This speculative 

suggestion not only finds no factual support but contravenes the longstanding 

presumption that “[b]oth the Legislature and the electorate by the initiative process are 
16

deemed to be aware of laws in effect at the time they enact new laws and are conclusively 

presumed to have enacted the new laws in light of existing laws having direct bearing 

upon them.” (Williams v. County of San Joaquin (1990) 225 Cal.App.3d 1326, 1332; 

People v. Armstrong (1992) 8 Cal.App.4th 1060, 1067.)

It is worth noting further that in 1994 the Elections Code was reorganized with the 

purpose of clarifying its provisions. (Stats. 1994 ch. 920, §§ 1-2, p. 4690.) This act did 

not, however, substantially alter the 1976 recall provisions. Indeed, the Legislature 

emphasized that “no change made by this act shall be construed to create any new right, 

duty, or other obligation that did not exist on the effective date of this act, or result in the 

limitation or termination of any right, duty, or other obligation that existed on the 

effective date of this act.” (Stats. 1994, ch. 920, § 3, p. 5163.) Section 2 of the 

reorganized law stated, “The provisions of this code, insofar as they are substantially the 

same as existing statutory provisions relating to the same subject matter, shall be 

construed as restatements and continuations, and not as new enactments.”

14

Olson v. Cory (1980) 27 Cal.3d 532 (Olson), on which Judge Persky relies, does 

not alter our view that the Elections Code provisions for recall of superior court judges 

withstand constitutional scrutiny. The Supreme Court in that case held that legislation 

limiting cost-of-living increases in judicial salaries was unconstitutional, as it impaired 

judges’ vested, constitutionally protected contract rights existing before the adoption of 

 

14 SB 1547, the 1994 bill that most recently amended the Elections Code, proposed

to “state the intent of the Legislature to reorganize and clarify the Elections Code and 

thereby facilitate its administration. It would further state the Legislature’s intent that the 

changes made to the Elections Code, as reorganized by this act, have only technical and 

nonsubstantive effect. This bill would state the finding of the Legislature that the 

reorganization of the Elections Code pursuant to this act, in view of the nonsubstantive 

statutory changes made, will not result in new or additional costs to local agencies 

responsible for the conduct of elections or charged with any duties or responsibilities in 

connection therewith.” (See Legis. Counsel’s Dig., Sen. Bill. No. 1547, (1993-1994 Reg. 

Sess.), 5 Stats. 1994, Summary Dig., p. 360).
17

that legislation. In the course of determining the scope of that protection, the Court cited 

article III, section 4, which prohibits the reduction of the salaries of “elected state 

officers” during their term of office. In that specific context, the Court said, “[j]udges are 

state officers,” even though the constitutional provisions it cited did not specifically 

affirm that proposition. (Olson, supra, at p. 543.)15 The Court did not purport to deem 

trial court judges state officers for all purposes.

Warden v. Harker (1931) 212 Cal. 775, also cited by Judge Persky, is likewise of 

no assistance. In that case the plaintiff brought an action to quiet title to land he had 

purchased at a tax sale. In appealing from the judgment in favor of the defendant 

taxpayer, the plaintiff contended that the assignment of the judge from another county 

violated the constitutional provisions on recall. In one sentence the Supreme Court 

responded, “Admittedly, the voters of Tulare County could recall the judge, and the 

voters of Los Angeles County could not; but we are unable to perceive in what manner 

this affects the jurisdiction of a state officer, a judge of the superior court of the State of 

California, sitting in any county to which he may be assigned by the chairman of the 

judicial council in pursuance of the Constitution of this state.” (Id. at p. 776-777.) The 

dicta in Warden is not helpful in these circumstances.

 

15 The Supreme Court cited former article VI, section 1 (“The judicial power of 

this State is vested in the Supreme Court, courts of appeal, superior courts, and municipal 

courts . . . .”) and article VI, section 16—which, before the unification of the inferior 

courts, separately prescribed the term and manner of electing judges of the Supreme 

Court, Courts of Appeal, and “[j]udges of other courts.” (Former art. VI, § 16.) Terms of 

superior court judges were set at six years, while Supreme Court and appellate court 

justices were to serve 12-year terms. The current article VI, section 16, recognizing the 

elimination of municipal courts, makes a similar distinction in the manner of election 

between the Supreme Court and appellate court justices (“elected at large” and “elected 

in their districts,” respectively) and superior court judges “(elected in their counties”) as 

well as the length of terms (12 years for Supreme Court and appellate court justices; six 

years for superior court judges).
18

Finally, we take the view that respect for the statutory framework of the recall 

process—in particular, the distinction between superior court judges and justices at the 

Courts of Appeal and Supreme Court—also makes practical sense when applying the 

procedures set forth in division 11 of the current Elections Code. Under our Constitution, 

superior court judges are “elected in their counties” and are therefore retained or recalled 

by voters in those counties. (Art.VI, § 16, subd. (b).) The districts served by the justices 

of the Courts of Appeal span multiple counties, and, of course, Supreme Court justices 

are “elected at large,” as they serve the entire state. (Art.VI, § 16, subd. (a).)16 For those 

justices, the Secretary of State must coordinate the results reported by elections officials 

in the multiple counties served by those offices. The recall provisions contained in the 

Elections Code reflect this rational distinction by assigning county elections officials the 

task of receiving, counting, and verifying signatures of voters within their borders, while 

the Secretary of State attends to coordination among all the counties within the affected 

jurisdiction. (§§ 11104-11108.) Requiring the Secretary of State, as the chief elections 

officer of California,17 to manage the counting, filing, certification, and circulation of 

recall petitions for all superior court judges of the 58 counties in addition to his existing

duties pertaining to all state officers would amount to an insuperable burden that could 

 

16 As noted above, even before the amendments made by Proposition 14, article 

VI, section 16, dictated that “Judges of the Supreme Court shall be elected at large and 

judges of courts of appeal shall be elected in their districts . . . Judges of other courts shall 

be elected in their counties or districts at general elections.” Thus, the Constitution has 

long made distinctions between trial courts—i.e., superior, municipal, and justice 

courts—and the higher courts (Supreme Court and Courts of Appeal).

17 “The Secretary of State is the chief elections officer of the state, and shall 

administer the provisions of the Elections Code. The Secretary of State shall see that 

elections are efficiently conducted and that state election laws are enforced. The 

Secretary of State may require elections officers to make reports concerning elections in 

their jurisdictions.” (Gov. Code, § 12172.5, subd. (a).)
19

not have been contemplated as this state’s election laws evolved along with the 

composition of the judiciary.

Judge Persky finally charges that eliminating superior court judges from the class 

of “state officer” deprives them of protections all state officers enjoy. He cites, for 

example, article II, section 18, which permits a state officer who is not recalled to be 

reimbursed by the state for his or her “recall election expenses legally and personally 

incurred.” He has not shown, however, any such monetary advantage will directly and 

immediately operate in his case. He also has not shown how sections 11108 and 11324, 

subdivision (b),

18 support the reclassification of superior court judges, contrary to the 

explicit, constitutionally authorized direction of the Legislature. (Art. II, § 16.)

We thus conclude that the Legislature did not impermissibly distinguish between 

appellate courts and superior courts in setting forth the procedures for recall of judicial 

officers, including their classification as “state” or “local” officers. Through the 

procedures outlined in section 11001 et seq., the Legislature complied with its 

constitutional mandate in article II, section 16, to “provide for circulation, filing, and 

certification of petitions, nomination of candidates, and the recall election,” without 

contravening any other constitutional provisions governing the recall of judicial officers. 

As currently phrased, article II, section 14, does not clearly classify trial court judges as 

state officers, but only identifies precisely what offices qualify for the 20-percent 

 

18 Section 11324, subdivision (b), states: “In the case of a recall of a state officer, 

the official responsible for preparing the voter information guide pursuant to 

subdivision (a) shall include in the voter information guide the report of estimated costs 

of the recall prepared by the Department of Finance pursuant to subdivision (d) of 

Section 11108.” As arguably relevant here, section 11108 provides for a 30-day period in 

which a signature can be withdrawn from the petition, an estimate by the Department of 

Finance of the costs of the election, a 30-day review by the Joint Legislative Budget 

Committee, and remittance of the necessary funds to the election official. Both statutes 

are the product of SB 117, effective August 24, 2017. (Stats. 2017, ch. 180, §§ 11, 13, 

pp. 2056-2057.)
20

signature threshold applicable to a recall petition. We therefore find no constitutional 

basis on which to delay the processing of the current recall petition in order to compel the 

Secretary to take over the initial recall procedure from Shannon Bushey, the designated 

elections official for Santa Clara County voters.

Disposition

The order is affirmed.
_________________________________

ELIA, ACTING P. J.

WE CONCUR:

_______________________________

GROVER, J.

_______________________________

DUFFY, J.*19

Persky v. Bushey

H045129

 

19 *Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned 

by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Trial Court: Santa Clara County Superior Court

Superior Court No.: 1-17-CV-314311

Trial Judge: Honorable Kay Tsenin

Counsel for Plaintiff and Appellant:

AARON PERSKY

McManis Faulkner

James McManis

Elizabeth Pipkin

Christine Peek

Law Office of Mark S. Rosen

Mark S. Rosen

Counsel for Respondent:

SANTA CLARA COUNTY REGISTRAR OF 

VOTERS

SHANNON BUSHEY

James R. Williams, County Counsel

Steve Mitra, Assistant County Counsel

Elizabeth G. Pianca, Lead Deputy County Counsel

Counsel for Real Parties in Interest:

MICHELE DAUBER, et al.

Strumwasser & Woocher

Fredric D. Woocher

Beverly Grossman Palmer

Kaufan Legal Group

George Yin

Counsel for Intervener and Respondent:

SECRETARY OF STATE

ALEX PADILLA

Office of the Attorney General

Xavier Becerra, Attorney General

Aaron Jones, Deputy

Thomas S. Patterson

Constance L. LeLouis