Tuesday, May 16, 2006
Page 7
PERSPECTIVES (Column)
2006: the Year of the Writless Primary
By ROGER M. GRACE
The current judicial elections season has been lively, as they usually are. But one usual event in the biennial circus has been missing. There have been no writ proceedings in the Los Angeles Superior Court challenging ballot designations.
In at least three instances, such efforts might well have succeeded.
Except for elected officials or appointed judges, who may use their full titles, candidates are limited to three words in which to describe their “principal professions, vocations, or occupations.” So says Elections Code §13107. Candidates sometimes get inventive.
A challenge to the designation used by George C. Montgomery—about whom this newspaper has editorialized negatively—would seemingly have been a slam-dunk win, at least with respect to his spurious claim to being a “teacher” (a claim he bases on occasional mentoring of young lawyers). Montgomery is seeking Office No. 102.
In addition, I would suspect that writs would have been granted, if sought, ordering new designations for Lynn Olson, a candidate for Office No. 120, and Robert Davenport, who is seeking Office No. 122.
Olson is listed as an “Attorney at Law” and Davenport is said to be a “Disabled Veteran/Attorney.”
Olson does not practice law. Lawfully, she could, having recently changed her inactive status to active—but she doesn’t. She’s in the bakery business.
Davenport remains on inactive status. He is thus not allowed to practice law in this state—and doing so would be a misdemeanor. In fact, though on active status from June 14, 1988 to Jan. 1, 1989, he never represented any client during that period. Since then, he has had only one client: himself, whom he has represented in numerous matters (gaining the status of a vexatious litigant).
Can either candidate be said to be an “attorney” by profession? The obvious message of Elections Code §13107 is that ballot designations are to convey to voters what the candidate does for a living—not what the person is licensed to do.
The Court of Appeal held in 1994 that the term “principal,” as used in that statute, “connotes a substantial involvement of time and effort such that the activity is one of the primary, main or leading professional, vocational or occupational endeavors of the candidate” and that the term “precludes any activity which does not entail a significant involvement on the part of the candidate.”
Olson and Davenport hold law licenses but have no involvement, let alone a significant one, in the practice of law. Accordingly, it would seem that neither was legally entitled to use “attorney” or “attorney at law” in a ballot designation.
Nor was Davenport appropriately listed as a “Disabled Veteran” given that this is a status, rather than a profession, vocation or occupation. (This is so even though he does derive income from military benefits based on his supposed “disability” caused by a foot fungus.)
Thus, had a writ been sought challenging the designation of either Olson or Davenport, a writ most certainly should have been granted.
It is understandable that Olson’s rival did not seek a writ. She’s Los Angeles Superior Court Judge Dzintra Janavs who presides in one of the two downtown Los Angeles writs and receivers departments, and undoubtedly knows that writ relief would lie. However, the seeking of a writ might well have accorded the obscure “bagel lady” publicity and surely would have been perceived as a sign of weakness—that is, it would have signaled that Janavs, though the incumbent, was taking the frivolous challenge seriously.
Whether the deception by Olson and Davenport would warrant discipline under rule 1-700 of the Rules of Professional Conduct (for misrepresenting their qualifications) is a separate question from whether writ relief would have been appropriate. Inasmuch as Olson and Davenport do, in fact, hold law licenses, and even though Davenport’s is not activated, a legal argument could be fashioned in support of their contentions that they may list themselves as “attorneys.” While any such argument would be frail, it’s doubtful, as a practical matter, that it could be established that Olson and Davenport “knowingly, or with reckless disregard for the truth” misrepresented themselves as being attorneys by profession.
This is in contrast to Montgomery’s designation of himself as a “teacher” when he has no teaching credentials, no teaching post, and no arguable claim that teaching is one of his “professions, vocations, or occupations.”
Davenport, however, would surely be subject to discipline were it determined, as the Registrar-Recorder’s Office found, that he is not a “Retired Judge Advocate,” a ballot designation he sought to use. Davenport has included that description of himself in his posting on the League of Women Voters’ “SmartVoter.com” website.
Davenport, Olson and Montgomery, you might note from the lead story today, were all rated “not qualified” by the Los Angeles County Bar Assn. yesterday.
ARE THEY ‘PROFESSORS’?—There is uncertainty as to the permissibility of the ballot designations of Los Angeles Deputy District Attorney Judith Meyer and realtor/attorney Douglas W. Weitzman, both of whom are running for Office No. 28, and Los Angeles Superior Court Commissioner Alan H. Friedenthal, who is seeking Office No. 8. The designation of each of the three includes the word “Professor.”
Friedenthal and Meyer each teaches one night a week at a law school, and has the title “adjunct professor,” not “professor.” Weitzman was an “instructor” at the University of Phoenix, teaching law-related topics on a once-a-week basis.
Uncertainty is spawned by inconsistent trial court actions in response to writ proceedings brought by opponents of supposed “professors.”
My own view, expressed here in the past, is that teaching one class a week is not a principal pursuit for someone with a fulltime day job, and an “adjunct professor” is not a “professor.” However, until an appellate court makes such a determination, I suppose that candidates with weekly pedagogical gigs cannot be expected to forego a “professor” designation when this has become so common a practice.
WEITZMAN CREATES SUSPICION—Weitzman might well be in a different situation from that of “Professors” Meyer and Friedman. Even if teaching a class once a week with the title “instructor” entitles a candidate to use the designation “professor,” that entitlement would be conditioned by §13107 on having performed the teaching chores within the preceding calendar year. The section says, in para. 3, that a ballot designation may be comprised of...
“No more than three words designating either the current principal professions, vocations, or occupations of the candidate, or the principal professions, vocations, or occupations of the candidate during the calendar year immediately preceding the filing of nomination documents.”
In interviews, Weitzman would not attest to having taught within the past year, speaking in vague terms about when his last class was—such as: “I haven’t taught a class in about a year.” If, in fact, he did teach during 2005, it might be assumed that he would know that, and would not hesitate to say so.
He tries to talk his way around that. Even if he’s not currently teaching, he insisted, “I’m still a professor at the school,” explaining that “the director of the school told me it’s OK” to use the title.
It is doubtful that the “director of the school” would be empowered to give Weitzman permission to circumvent the Election Code.
The University of Phoenix, a nation-wide school with a less-than-prestigious image, would only confirm that Weitzman had taught there and had the title “instructor.”
Weitzman, by the way, was also rated “not qualified” by LACBA.
Copyright 2006, Metropolitan News Company