Bernhardt Must Face Recall Vote in Old District : Elections: Judge’s rulings are a double blow to the San Diego councilwoman. A race among candidates for her seat will be held simultaneously on April 9.

A Superior Court judge Wednesday refused to cancel San Diego City Councilwoman Linda Bernhardt’s April 9 recall election and ruled that the voters who signed the petitions to schedule the contest must be allowed to determine her fate.

Judge Harrison Hollywood, delivering the double blow to Bernhardt’s chances for political survival, overruled the council’s Jan. 9 decision to move the recall election into Bernhardt’s newly reapportioned 5th District.

“The disenfranchisement of voters attempted by the City Council is an improper use of council power,” he said in an oral ruling from the bench.

Instead, Hollywood said, Bernhardt must face voters in the neighborhoods of her old 5th District, where the recall petitions were circulated.

Those boundaries include the Scripps Ranch and Mira Mesa neighborhoods, where sentiment against the first-term councilwoman is believed to run deepest. Bernhardt’s opponents believe the boundary change significantly increases their chances of recalling her.

Simultaneously, Hollywood ruled that attorneys Tom Behr and Mike Eckmann, two Scripps Ranch residents who had declared their candidacies for Bernhardt’s seat, must be afforded the opportunity to run against her. The pair would have lost the opportunity to run against Bernhardt if Hollywood had let the council decision stand.

But the boundary change appeared to end the candidacies of John McLean and Richard Rider, who no longer live in the district where the election will be held.

The fate of another candidate, Robert Schuman, who has changed residences twice in anticipation of council decisions about where the election is to be held, will not be determined until today, the deadline to file for the election. Schuman’s attorney said Schuman must decide by this morning whether he wants to relocate once again to the old 5th District.

Bernhardt said, after Hollywood ruled on four separate lawsuits, that she is undecided about asking her council allies to appeal his decision on the recall boundaries. She said she is not inclined to file one herself.

Bernhardt agreed, however, that chances for delaying or blocking the election by any means had significantly diminished Wednesday. “I think we’ll have an election April 9, and I believe I will win,” she said.

Bernhardt’s detractors had other ideas. “I think Linda will try to find some other way to block us from recalling her,” said Kathy Gaustad, chairwoman of the Recall Bernhardt Committee. “Let the council put this aside, and let the election go forward.”

“There was no question that she was going to be recalled before, and no question that she’s going to be recalled now,” said attorney Behr, one of 12 potential candidates who had taken out nominating papers by Wednesday. The deadline to file those papers, with 200 valid signatures attached, is today.

Candidates for Bernhardt’s seat will run in a separate election simultaneous to the recall election. If Bernhardt retains her seat, which will be decided by a simple majority, the results of the tandem election will be moot.

The recall effort is essentially a referendum on Bernhardt’s performance during her short term in office. Her supporters claim that the drive is backed by powerful development interests who lost a key seat on the council when Bernhardt trounced former Councilman Ed Struiksma in November, 1989.

Bernhardt’s opponents, however, say many community members were incensed by her decision to jettison Scripps Ranch and Mira Mesa during last summer’s council reapportionment.

Depending on who replaces her, Bernhardt’s ouster could alter the balance of power on the council, where she is a member of the five-vote majority that has determined policy on key issues such as the reapportionment.

An investigation by Dist. Atty. Edwin Miller’s office into Bernhardt’s campaign finances and a review of her outstanding campaign debt by City Atty. John Witt’s office have added to the councilwoman’s woes.

Hollywood quickly dismissed a lawsuit brought by Bernhardt supporters seeking to invalidate the recall election on the grounds that one petition circulator was not registered to vote and did not personally witness all signatures, as required by law.

“If we followed your logic,” he told attorney Steve Schreiner, “no elector, no voter, could ever rely on a petition handed to (him) in a market or a parking lot. . . . That doesn’t make sense.”

Then Hollywood faced the novel question posed by an election called by voters in the midst of a council reapportionment, one that significantly altered the boundaries of Bernhardt’s district.

Deputy City Atty. Ken So, representing the council majority that had shifted the election to Bernhardt’s new district, argued that “it would be illogical to have an election in a district that doesn’t exist anymore.”

Ironically, John Witt’s office had indicated in a legal opinion that Bernhardt should run in the old district. But, when the council majority of Abbe Wolfsheimner, John Hartley, Wes Pratt, Bob Filner and Bernhardt voted otherwise, the city attorney was required to defend that decision.

John Quirk, representing five residents who wanted the election in the old 5th District, told Hollywood that “it stands to reason that those who . . . delegate (political) power have the right to take it back.”

Bob Ottilie, who represented Behr, argued that the council lacked authority to switch the site of the recall and that Bernhardt should not have participated in the vote because she had political and financial interests in its outcome.

“The people in Mira Mesa and Scripps Ranch would be left with no elected representative who is responsive to them, who has been put into office by them,” Ottilie argued.

Hollywood, noting that courts are traditionally reluctant to intervene in wholly political questions, said this case involves “fundamental constitutional rights.”

In an unusual twist, Hollywood quoted from a legal brief submitted by Councilman Bruce Henderson, who inherited Scripps Ranch and Mira Mesa from Bernhardt when the council redrew district lines.

The power to recall an elected representative “cannot be transferred to any other group of voters,” Henderson asserted in the legal papers. “It is a fundamental principle of our democracy wherever practiced in the United States that no voter can exercise the right of another voter, even by proxy, let alone by legislative fiat.”