Henderson on the Frye Appeal

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      The Court of Appeal has set a briefing schedule (a copy is attached) in the Frye vote case as well as scheduled oral argument for an unspecified date in September. Under that schedule a decision would be expected in October, which would the earliest, therefore, that Donna Frye could take office as San Diego's Mayor.
The Court of Appeal has also asked counsel to address in their briefs the question of whether the matter is or is not moot due to the resignation of Dick Murphy. Our opinion is that when the case was filed the court took jurisdiction over the election for the four-year term running from December 2004 through December 2008. Mr. Murphy's resignation does not affect that "term," nor does an appointment or new election result in a new term of office. Rather, an appointed mayor or newly elected mayor serves only for a portion of the term for which the original election was held November 2, 2004. Therefore, the case is not moot and once the court acknowledges that Donna Frye was the lawful winner of the November 2, 2004 election she takes office regardless of the resignation by Dick Murphy.
My clients (Mr. Currie and Mr. Conde) would like this matter briefed on a schedule that is even more expedited. We would like to have a decision in July. However, we have been waiting for the record to be prepared by the court clerk. That record should be available within a week or two at which point, we would hope to be able to present a revised schedule to the parties and to the court for consideration.
Obviously, it would be highly preferable if the Court of Appeal could render its decision in this case prior to July 15, 2005, the date Dick Murphy has announced as the effective date of his resignation.