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Two legal assaults take aim at mayor's seat

Plaintiffs seek to topple Murphy with 'liberally construed' write in votes

Nearly three months after votes were cast in an election that made news headlines countrywide, the argument over who should preside as mayor of San Diego will go before the courts Monday.

Two teams of lawyers filed suits contesting incumbent Mayor Dick Murphy's 2,108-vote victory over write-in candidate Councilwoman Donna Frye by.

The cases before the bench pit state and local election codes against each other. At issue are 5,547 disputed ballots - and hence, the election. The ballots, identified in an unofficial recount, are in dispute because voters wrote in Frye's name but neglected to color in the corresponding bubble.

According to state election code, in order for the votes to count, the bubble must be filled in.

The San Diego City Council consolidated the election with the state election on July 26. Under this agreement, the San Diego County Registrar agreed to follow the state codes in the counts.

Judge H. Michael Brenner, from Orange County, is presiding over the matter after San Diego judges were recused. Murphy is a former Superior Court Judge.

A number of Frye supporters have argued that the votes should be counted because voter intent is clear.

Fred Woocher, a Santa Monica-based attorney who filed a suit Jan. 6 on behalf of three Frye supporters, listed a series of arguments that contended the votes should be "liberally construed" and allow the maximum number of votes to count.

In a trial brief filed Wednesday, Woocher wrote, the "law requires that every effort be made to give effect to the will of the voters in order to protect their right to vote."

The plaintiffs in Woocher's suit are San Diego residents Brian Lawrence, Gail Rojas and Sandra Zatt.

Woocher also argues that the bubbles on the ballot are used to make vote counting easier and "are not essential to safeguarding the fairness of the election or determining popular will."

Bruce Henderson, a local attorney that filed a suit on Dec. 30 representing two Frye supporters, argued that the city election codes should be the final determining factor in the vote counting.

The plaintiffs in Henderson's suit are residents Steven Currie and Lou Conde.

Both lawsuits have named Mayor Murphy as the defendant.

In their respective filings, Henderson and Woocher each argue that the City of San Diego election code states that if a reasonable facsimile of the candidates name is written, the vote should count. In these instances where the city election code is pitted against the state election code, the city trumps.

Bob Ottilie, attorney representing Mayor Murphy, has argued that because the city consolidated the election the state election codes apply. Over the past weeks Ottilie has held a number of press conferences reiterating the position.

Otillie, in the opening hearing, also said that using the ballots in a partial recount may not be accurate without going over all of the ballots to ensure that the same standards are applied in canvassing.

City Attorney Michael Aguirre issued an opinion on Jan. 21 that the "unbubbled" ballots should not be counted because the voters right to intent does not trump the state's right to run an election.

He wrote, "any reasonable doubt whether a matter is a municipal affair or a broader state concern must be resolved in favor of the state's legislative authority."

Adding a new twist to the proceeding, a group of three members of the local business community filed an amicus to the court on Wednesday challenging Frye's eligibility to enter into the Nov. 2 election as a write in.

The brief was filed by Charles Bird, on behalf of Mindy Fletcher, a former- communications director for the Republican National Committee; Ted Roth, local businessman and former chairman of the San Diego Regional Chamber of Commerce, and Bob Watkins, chairman of The Lincoln Club.

The filing claims that the election contests should be denied because, "Frye was a write-in candidate in a runoff election, and the [City] Charter limited the eligible candidates to the two who received the highest vote totals in the March 2004 primary election."

Mayor Murphy and Ron Roberts received the most votes in the March runoff.

In October, the San Diego City Clerk approved Fyre's entry into the election under an interpretation of the municipal code.

Attorneys fees

Woocher and Henderson's challenges have also caused frustrations with the city guidelines for the payment of legal teams.

Henderson and Woocher, because they are representing a city interest, are not required to disclose who is paying them and how much.

Murphy is not permitted to use city funds to pay for his defense because campaigning is not part of the official duties of the office of mayor, according to the city attorney's office.

Murphy, therefore, must set up individual "legal defense funds" for each lawsuit and solicit contributions from people to the maximum of $250 and report them.

Murphy has set up separate accounts for the two cases. Disclosure forms are due in April.

Murphy and Ottilie have both complained about the unfairness of the system. Murphy has also said that if the money cannot be raised to pay his attorneys, he pays the rest out of pocket.

Related Article:

Ottilie works to stave off challenges to mayor's legitimacy (Jan. 28, 2005)

Research:

Find more articles about Mayor Dick Murphy, Councilwoman Donna Frye

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