Abcarian v. Shelley

77 F. App'x 410

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 2, 2003
• Docket: No. 03-56519; D.C. No. CV 03-15543 LGB (MANx)
• Status: Published

Opinion

MEMORANDUM

**

Plaintiff-Appellant Dick Abcarian challenges Appellees’ plan to place the names of replacement candidates on the ballot for the October 7, 2003 election whether to recall California Governor Gray Davis. He contends that if the Governor is recalled, the resulting vacancy should be filled not by a replacement candidate but instead by the current Lieutenant Governor. According to Abcarian, disrupting his legitimate expectation in this automatic succession by holding an election for a replacement would violate his federal due process rights.

Abcarian appeals from the district court’s denial of his application for a temporary restraining order. The district court determined that Abcarian was unlikely to succeed on the merits of his claim in light of a recent California Supreme Court en banc decision interpreting the operative provisions of the California Constitution as permitting the gubernatorial recall ballots to include the names of successor candidates. See Frankel v. Shelly, Case No. S117770, Aug. 7, 2003.

By holding that Frankel controls, the district court decided the merits of the case in denying the petition for temporary relief. This court has jurisdiction over the appeal because the district court’s denial of a temporary restraining order was tantamount to the denial of a preliminary injunction. See Environmental Def. Fund, Inc. v. Andrus, 625 F.2d 861, 862 (9th Cir.1980); Kimball v. Commandant Twelfth Naval Disk, 423 F.2d 88, 89 (9th Cir.1970). Therefore, the court denies Appellees’ motion to dismiss this appeal for lack of jurisdiction.

On the merits, the district court appropriately deferred to the California Supreme Court’s interpretation of the California Constitution. See Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70, 76, 121 S.Ct. 471, 148 L.Ed.2d 366 (2000). Abcarian’s due process claim cannot succeed after Frankel.

Accordingly, the district court’s order denying Abcarian’s petition for a temporary restraining order is AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.