Appeals Court Seats Victor in Grossmont Vote

Emphasizing the importance of the will of the voters, a federal appeals court ruled Monday that the top vote-getter in last fall’s election is entitled to take his seat on the Grossmont Union High School District board.

Reversing a San Diego federal judge’s ruling and rejecting the district’s bid to block candidate Thomas Davies, the U.S. 9th Circuit Court of Appeals ruled that a promise Davies had made never to seek a job or an office with the district was no bar to his election.

That promise, included in the settlement of a complex and unrelated lawsuit that Davies and his wife had filed against the district in 1987, was not to be taken lightly, since the settlement was a contract, and contracts ought to be enforced, a three-judge panel of the court said.

But, the panel ruled unanimously, the rights set forth in a contract in a private lawsuit had to give way before the constitutional right of the voters in the urban East County district to choose the candidate they wished in the election last Nov. 6.

“I’m very pleased,” Davies, a mortgage broker and former educator, said Monday afternoon. “It’s obviously been a long, difficult period of time, and I’m pleased it’s over with. I look forward to going on the board and doing what I was elected to do.”

The district’s attorney, Richard Currier, could not be reached Monday for comment.

The 9th Circuit Court’s decision was unusual because, in a procedural irregularity, it was not accompanied by an opinion detailing the reasons behind its ruling. The panel said a “full opinion” would follow.

It issued only a brief order, apparently to get a ruling on the record because Davies has to take his seat this week or be barred by election laws from the office, said his attorney on appeal, San Diego lawyer Kenneth Klein.

In addition, the school board, which serves 18,647 students, has found itself short recently of three of its five elected members, including Davies. Maynard R. Olsen, a La Mesa doctor and Army reservist, was called to active duty in December. Fred Andrews, an accountant, died Feb. 2.

Davies received 51,038 votes, or 22%, in November’s election--3% more than the runner-up candidate, Olsen. Under the district’s system, the top three vote-getters at the polls are elected.

In December, however, after the district cited the 1987 lawsuit filed against it by Davies and his wife, Nadia, a teacher in the district, U.S. District Judge J. Lawrence Irving barred Davies from being officially sworn in.

The suit, which alleged several grievances, was settled in 1989. Details remain confidential, though the deal contained a clause in which Davies agreed to never “seek, apply for or accept future employment, position or office” with the district.

In a Dec. 12 ruling, Irving said that the clause barred Davies from holding an elected position and found him in contempt of court for violating the settlement. Irving, who resigned from the bench Dec. 31, also ordered Davies to pay the district’s attorneys’ fees of $25,800.

On Jan. 22, then-Chief U.S. District Judge Gordon Thompson Jr. upheld Irving’s ruling, prompting Davies’ appeal to the San Francisco-based 9th Circuit.

Judges James R. Browning, Dorothy W. Nelson and Stephen Reinhardt issued the opinion. It was not clear which of the three judges wrote it.