Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
In action challenging placement of potential successor candidates' names on gubernatorial recall election ballot, on grounds that if governor was recalled, lieutenant governor should replace him, the United States Court for the Central District of California, Lourdes G. Baird, J., denied motion for temporary restraining order. On appeal, the Court of Appeals held that: (1) Court of Appeals had appellate jurisdiction to review denial of temporary restraining order, and (2) District Court properly deferred to the California Supreme Court's interpretation of the California Constitution.
Affirmed.
Page 411.
Appeal from the United States District Court for the Central District of California, Lourdes G. Baird, District Judge, Presiding.
Before PREGERSON, THOMAS, and PAEZ, Circuit Judges.
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.
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 Dist., 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.