The legal uncertainty surrounding the recall campaign against San Diego City Councilwoman Linda Bernhardt deepened Thursday as her attorney sought to block the election, even as her opponents went to court in an attempt to change the race’s boundaries.
In another twist to the growing legal debate over Bernhardt’s political future, Robert Schuman, one of the councilwoman’s would-be successors, won a judge’s permission Thursday to circulate candidacy petitions for the 5th District race--even though a decision on whether he will actually be on the April ballot was delayed until next month.
Thursday’s multiple hearings in San Diego County Superior Court further muddied the legal waters created by the City Council’s controversial decision earlier this month to hold the recall in Bernhardt’s new district rather than the one that elected her in 1989--a move that enhanced the 13-month councilwoman’s chances of survival.
Left unresolved were the critical questions of if there will even be a recall and, assuming one is held, where it would be conducted and who would be eligible to run or vote. That, in turn, not only left Bernhardt and other potential candidates in legal limbo, but also renewed doubts about whether the planned April 9 race might be postponed--or scrapped.
Infuriated by the council’s 5-4 decision, made with Bernhardt casting the deciding vote, leaders of the Recall Bernhardt Committee Thursday asked Judge Harrison Hollywood to overrule the council’s Jan. 9 action by ordering the recall to be held in her former district, where the recall petitions were circulated late last year.
According to the anti-Bernhardt group’s attorneys, the council’s action unconstitutionally eliminated the right of most of the voters who initially elected her to remove her from office. However, council members and other city officials have argued that holding the recall in Bernhardt’s former district would disenfranchise her current constituents.
In a closed hearing in his chambers, Hollywood postponed ruling on that issue--as well as on Bernhardt supporters’ suit seeking to scuttle the election because of alleged improprieties with the recall signature-gathering process--until Feb. 6, the day before the candidate filing deadline.
The pro-Bernhardt suit raises questions about the legality of the recall itself, an argument stemming from the allegation that one petition circulator was not a registered voter and did not personally witness all signatures, as required by law. If the signatures submitted by that individual were eliminated, attorney David Lundin argues, the petitions probably would contain fewer than the 11,240 valid names required to qualify the issue for the ballot.
“It’s a technicality, but a pretty important one,” Lundin said.
Schuman, meanwhile, will not learn until Feb. 5 whether he will be able to seek Bernhardt’s seat, when Hollywood will rule on his request to extend a residency requirement that poses an obstacle to his candidacy.
Anticipating that the recall will be held in the former 5th District, Schuman had moved from Bay Park in the new district to Mira Mesa in the old one. When the council did the opposite of what he expected, he quickly moved back to Bay Park--but one day too late to satisfy a requirement that candidates must live within a district 30 days before the filing deadline.
In his suit, Schuman, arguing that he substantially complied with the law’s intent, asks that the residency deadline be extended by two business days to enable him to run. Though he deferred a decision on that request, Hollywood did order the city clerk’s office to at least allow Schuman to take out candidacy papers pending that ruling.
“All I can do is circulate the petitions, hope they let me run and hope that the district stays the same,” said Schuman, a stockbroker and former San Diego County Republican Party chairman. If a court shifts the recall to the old district, Schuman said, he will not run, even if given legal blessing to do so.
The ambiguity over Schuman’s potential candidacy epitomizes the dilemma faced by virtually all parties involved in what would be the first City Council recall campaign since the City Charter was approved early this century.
As they left the courthouse Thursday, city attorneys acknowledged that the uncertainty over the recall’s boundaries--indeed, over the recall itself--poses strategic and logistical problems for the candidates, as well as their partisans and opponents.
“That’s going to be somebody else’s problem,” said Assistant City Atty. Curtis Fitzpatrick.
In Thursday’s hearings, Fitzpatrick and Asst. City Atty. Kenneth So found themselves in the ironic position of defending a council policy that the city attorney’s office had specifically recommended against.
Before the council’s decision on the recall’s locale, City Atty. John Witt recommended that the race be held in Bernhardt’s former district. In rejecting that advice, the council majority noted that even Witt acknowledged that there is scant legal precedent in the case, making the choice on where to hold the recall a judgment call.
From the perspective of the recall leaders, however, the council’s so-called “Gang of Five” was motivated largely by a desire to help an ally by ensuring that Bernhardt would not have to face angry Scripps Ranch and Mira Mesa voters who felt abandoned by her support for a controversial 1990 redistricting plan that shifted them to another district.
Though Bernhardt argues that the decision on the election’s boundaries “will have more impact on my opponents’ strategy than on me,” the consensus within political circles is that her chances would be markedly better in her new district. There, she would not confront the same liabilities or, equally important, the same voters that initiated the recall effort.
A simple majority vote would determine Bernhardt’s political fate in the April election. If she receives more than 50% of the vote, Bernhardt will retain her post, rendering the outcome of the companion election on possible successors moot. However, if Bernhardt is ousted, the candidate drawing the most votes in the other race--in which Bernhardt cannot compete--would serve the rest of her four-year term that expires in December, 1993.
Potential candidates mentioned to date include two former councilmen: Ed Struiksma, the two-term incumbent whom Bernhardt upset last November, and lawyer Floyd Morrow, who previously held the same seat. Two other announced candidates--corporate lawyer Tom Behr and county planner Mike Eckmann--live in the old 5th District and would be ineligible unless a court reverses the council.
Recall leaders have cited a number of factors as the impetus behind their effort, including their dissatisfaction with Bernhardt’s approval of the redistricting plan that shifted several high-growth neighborhoods from the 5th District. Her opponents also have complained that, since her election, Bernhardt has accepted campaign contributions from developers after pledging not to do so in last year’s campaign.
Calling the recall effort “politics at its very worst,” Bernhardt argues that the campaign is being largely orchestrated by people who opposed her in last year’s election.