Metropolitan News-Enterprise


Thursday, September 1, 2005


Page 1


State High Court Declines to Hear Appeal of Ruling Upholding Secret Ballot Waiver for Fax Voting


By a MetNews Staff Writer


The California Supreme Court yesterday declined to grant direct review of a Sacramento Superior Court judge’s order upholding a new state law that requires overseas absentee voters to waive their right to a secret ballot if they choose to send in their votes by fax.

The appeal should be heard by the Third District Court of Appeal, the justices, who met yesterday in San Francisco for their regular weekly conference, said.

The high court last October denied a bid to block AB 2941, by Assemblywoman Patricia Bates, R-Laguna Niguel, from taking effect. It instead issued an order to show cause, leaving it to the Superior Court to decide “well in advance of the next statewide election” whether the requirement—part of Election Code Sec. 3103.5—violates the right to a secret ballot under the state Constitution or the Help America Vote Act.

To do otherwise, the justices said, would engender confusion right before the general election. The next statewide election will be a special election Nov. 8.

After Judge Lloyd Connelly upheld the law, the challengers asked the high court to hear the appeal, since it had sent the case to the trial court itself. But in a brief order, the justices said the order of last Oct. 15 “constituted a transfer of the proceeding to the superior court for all purposes, and the Court of Appeal accordingly has jurisdiction of the appeal from the ensuing judgment of the superior court.”

The bill, which was supported by then-Secretary of State Kevin Shelley and signed by Gov. Arnold Schwarzenegger, was passed to enable registered voters overseas, including those who might be unable to return their absentee ballots by mail in time to be counted—such votes must arrive by 8 p.m. on election day—to vote by fax. Such voters must complete an oath and provide all of the information that goes on the absentee voter identification envelope in order to have their votes counted.

The oath includes a statement in which the voter acknowledges “that by returning my voted ballot by facsimile transmission I have waived my right to have my ballot kept secret.” Election officials must, despite the waiver, adopt procedures to preserve voter secrecy, the statute provides.

Two overseas voters, represented by Mountain View attorney and Democratic Party activist Scott Rafferty, are challenging the law. Fax voting is reportedly permitted by at least 19 other states.

In other conference action, the justices:

•Denied a bid by the Campaign for California Families, a social conservative group, to transfer its challenge to California’s domestic partnership laws to the high court.

Campaign for California Families v. McPherson, C048303, involves a challenge to both AB 205, the broad domestic partnership law that took effect this year, and AB 25, a more limited law that took effect three years ago. The Third District Court of Appeal held the case pending the outcome of Knight v. Superior Court (Schwarzenegger), C048378, which challenged only the broader law.

Both challenges were rejected by Sacramento Superior Court Judge Loren McMaster, whose ruling in Knight was affirmed by the Third District panel to which the appeal in Campaign for California Families has been assigned.

The high court unanimously denied review in Knight on June 30, foreshadowing yesterday’s action.

•Approved an unusual arrangement in which five leaders of one of the state’s most violent prison gangs will have their life sentences for murder commuted to time served so that they may be transferred to federal prisons to serve life sentences for racketeering.

James Morado and fellow Nuestra Familia leaders Gerald Rubalcaba, Cornelio Tristan, Tex Hernandez and Joseph Hernandez agreed to the arrangement, which state and federal authorities said will enable the government to disperse the five among maximum-security federal institutions around the country and reduce their ability to command members on the street.

The five had been taken out of Pelican Bay State Prison, where the gang’s operations were centered, and placed in a special facility in Dublin in Alameda County. Law enforcement officials estimate that the gang is responsible for more than 600 murders in California since it formed in the 1960s.

The commutation, once formally approved by Schwarzenegger, will be contingent on the defendants serving out their lives in federal custody. The arrangement required the state high court’s approval, formally termed a recommendation, because that is the only way a multiple offender can receive executive clemency according to the state Constitution.

•Let stand a Third District ruling that prevents a disbarred attorney from receiving a real estate license.

Bernard Jerome Berg claimed the Department of Real Estate should have conducted an independent review of his case, rather than giving binding effect to a State Bar ruling he claimed was the result of an unfair process.

Berg, a San Francisco lawyer who practiced from 1959 until 1996, was disbarred in 1998, in part as a result of his activities as Cumis counsel in 41 dental malpractice actions. Dentists Insurance Company, which represented all of the insureds, sued in 1988, accusing Berg of “bulk billing”—charging for three minutes of attorney time for every page of material received, whether he actually reviewed it or not, resulting at times in billings for more than 24 hours of a single day.

When Berg applied for a real estate license in 2002, an administrative law judge found on the basis of the disbarment and the civil judgment in the insurance case that he had engaged in “fraud or dishonest dealing” and was thus not entitled to a real estate license. In doing so, the ALJ held that the disbarment proceeding afforded due process, and that it constituted a finding of illegal conduct by a state agency,† precluding a collateral attack on the final order.

The Court of Appeal agreed. The case is Berg v. Davi, C046809.

•Reinstated Mark Hamilton Salyer of Yuba County as a member of the State Bar, as recommended by the State Bar Court.

Salyer resigned 18 years ago rather than face discipline following his pleas of guilty to charges of embezzlement and methamphetamine possession. Salyer admitted that he stole thousands of dollars in client funds to support his drug habit.

The State Bar opposed reinstatement because Salyer admitted that he continues to drink alcohol on a regular basis, which the bar’s expert testified indicates that he is not in recovery. But the Review Department, while acknowledging that Salyer’s recovery regimen has been unorthodox, said it must be working because he has not used drugs in 17 years.

•Declined to review a Court of Appeal ruling from this district that allows a foundation that claims its $1 million gift to endow a chair at UCLA’s medical school has been misused to sue.

Overturning a contrary ruling by Los Angeles Superior Court Judge Robert L. Hess, Div. One revived a suit by the Woodland Hills-based L.B. Research and Education Foundation. The foundation claims that the money it gave to create the Julien I.E. Hoffman, M.D. Chair in Cardiothoracic Surgery has not been adequately accounted for and that an unqualified person was chosen to occupy the chair.

Hess ruled that the gift created a charitable trust, and that only the attorney general has standing to sue to enforce the terms of a charitable trust. But Justice Miriam Vogel, writing for the Court of Appeal, said that the foundation adequately pled its claim that it had made a conditional gift rather than created a charitable trust, and that it had standing in either event.

The 2000 agreement, signed by representatives of the donor and the UCLA Foundation, established criteria for the chair, requires an accounting for the funds, and declares that “if the Cardiothoracic Surgery program shall cease to exist at UCLA, or in the event that UCLA does not meet the terms and conditions of this agreement,” the funds shall be transferred to the University of California San Francisco’s medical school.

The case is L.B. Research and Education Foundation v. UCLA Foundation, B176151.


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