It’s likely that Governor Gavin Newsom will face a recall election this year.  But, as John Myers reported in the Los Angeles Times last month, partly because it would be only the second gubernatorial recall to make the ballot in California’s history, “[t]here is very little set in stone” about the election’s logistics.

Could prior Supreme Court decisions help eliminate uncertainties in the recall process?  That’s an interesting question, because the only court decisions regarding a gubernatorial recall aren’t published in the official reports and their precedential effect is questionable.

Two months before the 2003 election at which voters removed Governor Gray Davis and elected Arnold Schwarzenegger, the Supreme Court denied two writ petitions with detailed statements of reasons.  (The court also at the same time denied, but without comment, other recall-related petitions.  (Here [disclosure:  Horvitz & Levy partner Jon Eisenberg filed this writ petition in pro se], here, and here.))

In Frankel v. Shelley, the petitioners wanted to preclude voters from choosing a replacement for Davis if he were to be recalled; they argued, futilely, that the state constitution requires the Lieutenant Governor to succeed a removed Governor.  The court explained, “Nothing in [the relevant constitutional provisions], or in the history of the California constitutional recall procedure as a whole, indicates that it is not appropriate to include a list of potential successor candidates when a recall election involves the office of Governor.”

The same day Frankel was decided, the court also denied a writ petition in Burton v. Shelley, giving “substantial judicial deference” to the Secretary of State’s interpretation of the Elections Code that candidates for Governor in the recall election needed to submit only 65 registered voters’ signatures to get on the ballot instead of the more than 150,000 signatures the petitioners claimed were required.  Chief Justice Ronald George, joined by Justice Carlos Moreno, dissented, saying he would issue an order to show cause on the writ petition and claiming, “The chaos, confusion, and circus-like atmosphere that has characterized the current recall process undoubtedly has been brought about in large measure by the extremely low threshhold set by respondent for potential candidates to qualify for inclusion on the ballot.”  Justice Joyce Kennard filed a separate concurrence in the petition’s denial.

Are Frankel and Burton binding precedent on the legal issues addressed?  The Los Angeles Times article mentioned above apparently thought so, at least to some degree.  Probably referring to Burton, it said, “The final decision on ballot access requirements is left to [Secretary of State Shirley] Weber, who may have broad discretion on filing fees and the signature threshold under a California Supreme Court ruling from the 2003 gubernatorial recall.”

But there’s good reason to question the propriety of relying on Frankel or Burton as binding case law, or even as citable persuasive precedent.

First, the court has held that “the denial of a writ petition does not establish law of the case unless the denial is accompanied by a written opinion following the issuance of an alternative writ.”  (Kowis v. Howard (1992) 3 Cal.4th 888, 891.)  The court did not issue an alternative writ in either Frankel or Burton.  There wasn’t time for alternative writ procedure before the decisions, which issued just over a week after the writ petitions were filed.  If those decisions are not law of the Frankel and Burton cases, they probably shouldn’t be the law for any other case, either.

Second, besides the fact that the Frankel and Burton decisions were not opinions “following the issuance of an alternative writ,” they shouldn’t be considered “opinions” in the first place.  Westlaw refers to them as “opinions,” but rule 8.1105(a) provides, “All opinions of the Supreme Court are published in the Official Reports,” and Frankel and Burton aren’t published.  They are available only on the court’s online dockets and in computer-based legal research services.  They might not even be citable.  (Cf. rule 8.1115(a) [generally, “an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action”].)

Frankel and Burton might be good indicators of how the Supreme Court or lower courts would decide the issues raised in those writ petitions, but those issues are likely subject to re-litigation if the Newsom recall qualifies for the ballot.  Also, Secretary of State Weber can probably interpret the laws differently than her predecessor did in 2003, such as requiring would-be replacement candidates to gather a lot more signatures than were necessary 18 years ago.