Wednesday, March 19, 2014
Page 7
PERSPECTIVES (Column)
Pamala Matsumoto, Arnold Medick: Invalidly Claim Designations as ALJs
By ROGER M. GRACE
A judicial candidate is, all too often, a lawyer who vows to apply the law faithfully if elected, while seeking to circumvent it as an office-seeker.
Two aspirants in the June 3 primary are claiming the ballot title of “Administrative Law Judge.” They both did hold such a post…but don’t now.
One is currently a practicing attorney, the other is out of work. Both have broken the rules in trying to get their proposed ballot designations accepted.
•Pamala F. Matsumoto, an attorney in a Glendale law office, wants to be listed as an “Administrative Law Judge.” Her opponent, Deputy District Attorney Amy Carter, disputes the lawfulness of that designation, and on Monday filed a writ petition in an effort to block it.
Having “Judge” in her title could well afford Matsumoto an election advantage over Carter. On the other hand, if Matsumoto is stripped of any reference to her former role, and relegated to being listed as an attorney, Carter’s designation of “Sex Crimes Prosecutor” would lend her a decided edge.
Matsumoto did, in fact, work as an ALJ for the state Department of Social Services from Aug. 1, 2012 to July 1, 2013, after her services were terminated as a Los Angeles Superior Court referee, along with those of the other referees.
Elections Code §13107(a)(3) says that a candidate may use up to three words to state his or her “current principal professions, vocations, or occupations” or those which pertained “during the calendar year immediately preceding the filing of nomination documents.” (Certain office-holders have broader choices.)
For the first six months of the preceding calendar year, Matsumoto served as an ALJ. If §13107(a)(3) is viewed as complete, unto itself, insusceptible of administrative elaboration or tweaking, there’s no problem with the ballot designation.
On Tuesday of last week, Brad Hertz, an attorney for Carter, apprised Matsumoto of California Code of Regulations §20710, promulgated by the Office of Secretary of State, which says:
“If the candidate is engaged in a profession, vocation or occupation at the time he or she files his or her nomination documents, the candidate’s proposed ballot designation is entitled to consist of the candidate’s current principal professions, vocations and occupations. In the event the candidate does not have a current principal profession, vocation or occupation at the time he or she files his or her nomination documents, the candidate may use a ballot designation consisting of his or her principal professions, vocations or occupations, which the candidate was principally engaged in during the calendar year immediately preceding the filing of the candidate’s nomination papers.”
Matsumoto does have a current job. Under the regulation, she could use “Administrative Law Judge” only if she had been unemployed since leaving her fixed-term post with the DSS.
The candidate met with the MetNews on Thursday, about 48 hours after she had been told of the existence of the regulation. She acknowledged that she had been employed by the law office of Gregory Lucett since “the middle of November” of 2013.
Before Hertz brought §20710 to her attention, she said, “I was not aware of that,”
Matsumoto acknowledged that a codified regulation has the force of law.
Would she sign a stipulation that the ballot designation be changed, as solicited by Carter’s lawyer?
“I don’t know, yet,” she responded, explaining:
“I am still looking at the whole regulation.”
The “whole regulation” is 1,260 words.
Her inability to provide any hint of her legal analysis two days after a legal issue was presented to her—an issue impacting the viability of her election bid, and seemingly warranting her immediate attention—casts doubt on her ability to grasp and address legal questions speedily, as a judge should be able to do.
Matsumoto said she anticipated coming to a determination in the “next day so.” Since Thursday, she has shunned inquiries from this newspaper. The writ petition recites that she has declined to stipulate.
On its face, the statute gives each candidate an unfettered choice of telling of the principal activity in which he or she is now engaged or was engaged during the previous calendar year. Without more, an administrative regulation which denies that choice, would seemingly be in conflict with the statute.
There is, however, something more. Elections Code Sec. 13107(b) provides: “Neither the Secretary of State nor any other elections official shall accept a designation of which any of the following would be true: [¶] (1) It would mislead the voter.”
If a person formerly did one thing for a living and now does another—and the new job is neither part-time nor temporary—would it not necessarily “mislead the voter” to list the previous endeavor rather than the present one?
The California Supreme Court observed in 1964 that the purpose of the statute (then-§10211) “is to insure the accurate designation of the candidate upon the ballot in order that an informed electorate may intelligently elect one of the candidates.” That purpose would hardly be served by allowing Matsumoto to represent that she is a species of judge when she is actually working as an attorney.
Matsumoto insists that if her proposed ballot designation is not valid, the error is attributable to her unfamiliarity with election procedures, and not any intent to deceive. Indications are, however, to the contrary.
The candidate said in the interview that she “worked off the ballot designation worksheet” which poses questions to the candidate aimed at substantiating the proposed listing. “The way I read it, when I was at the Registrar’s Office,” she explained, the worksheet seemed to present “an ‘either-or’ ” choice of putting down current or past endeavors.
However, neither the worksheet nor the registrar-recorder’s “Candidate Handbook” makes reference to the prospect of using, as a ballot designation, a description of a prior position.
The worksheet seeks this information: “Current or Most Recent Job Title: .”
Matsumoto filled in: “Administrative Law Judge.”
The “Most Recent Job Title” would be other than the “Current Job Title” only if the person were not currently employed. Matsumoto is. And she knows that the job title of a lawyer handling insurance defense work is not “Administrative Law Judge.”
•Arnold William Mednick also wants to be designated an “Administrative Law Judge.” He, like Matsumoto, was an ALJ for the Department of Social Services. However, unlike Matsumoto, he quit before the one-year assignment was up. His last day on the job was Jan. 16, 2013.
And, unlike Matsumoto, he’s been unemployed since leaving the DSS. Accordingly, CCR §20710, requiring a listing of the current job, doesn’t apply.
That doesn’t mean the designation is valid. Plainly, it’s not.
It’s apparently true that Mednick held the post of administrative law judge for 16 days in the previous calendar year. That’s a mere 11 work days. (Well, maybe he worked 11 days in 2013. He says his last day on the job “technically” was Jan. 16—but won’t explain what he means. It could be used-up vacation days.)
It may be that “Administrative Law Judge.” was his only occupation in 2013 or, at least so far, in 2014—but his erstwhile position still does not meet the definition of a “principal” occupation.
A 1994 Court of Appeal opinion spelled out that the word “principal” in the statute “connotes a substantial involvement of time and effort” and “precludes any activity which does not entail a significant involvement on the part of the candidate.” That holding was incorporated in one of the regulations.
Working at a job for 11 days (at most) obviously does not amount to “substantial involvement of time and effort.” The ALJ designation would “mislead the voter.”
While “Administrative Law Judge” is Mednick’s first choice, he included on his Office of Registrar Recorder form a total of 17 proposed ballot designations. He submitted a rambling 27-page brief in support of them, to which he appended exhibits (the relevancy of most being unclear), the bundle being about three-quarters of an inch thick.
Sixteen proposed designations stem from Mednick’s service as a Los Angeles Superior Court referee in the Juvenile Court. He resigned on June 29, 2012, one day before the service of all of the court’s referees were terminated due to the budget crisis.
Sec. 13107(b)(4) permits use of a profession, occupation or vocation from the past—including, inferentially, one pre-dating the onset of the calendar year immediately preceding—provided the word “retired” is used. Use of some other “word or prefix, such as ‘former’ or ‘ex-,’ which means a prior status” is prohibited.
In nine of the proposed designations, Mednick uses “former” or prior,” explaining that the word “retired” unfairly implies that the candidate is old.
Sec. 13107(a)(3) permits “[n]o more than three words.” Four designations contain four words, rather than three; he explains that he doesn’t think the limitation is fair. In three, he employs the word “judicial,” even though a 1988 Court of Appeal decision says that subordinate bench officers can’t “utilize a ballot designation containing the word ‘judge’ or a derivative thereof,” such as “judicial.”
The main problem with Mednick’s invocation of the special rule for retirees is that, under CCR §20716(h)(4), reference to the job from which the candidate retired is precluded “if that candidate possesses another more recent, intervening principal profession, vocation, or occupation.” And Mednick possessed the more recent occupation of an administrative law judge.
Too, under §20716(h)(1), the special dispensation for retirees is accorded those “who have permanently given up their chosen principal profession, vocation or occupation.” Mednick acknowledges that he has been looking for work as a commissioner, administrative law judge, or some such post.
A factor to be considered, under the regulation, in determining if the retiree permanently relinquished the means of livelihood, is whether the person “voluntarily left his or her last professional, vocational or occupational position.” By submitting a resignation the day before his position was to be eliminated, Mednick hardly left the post of referee “voluntarily.” Absent any indication that he would have quit if the job if it had continued to exist, the candidate creates but an illusion of a consensual resignation.
Mednick says, playfully, that the most accurate designation for him would be “Unemployed Bench Officer.” That’s candid, but still not accurate. That designation would be akin to “Out-of-Work Office-Holder” or “Jobless Executive.” Without a bench to sit on, Mednick is not a “bench officer,” only someone aspiring once again to be one.
Under CCR §20714(b)(1), Mednick would be allowed to use the designation of “attorney.” That provision says:
“If a candidate is licensed by the State of California to engage in a profession, vocation or occupation, the candidate is entitled to consider it one of his or her “principal” professions, vocations or occupations if (i) the candidate has maintained his or her license current as of the date he or she filed his or nomination documents by complying with all applicable requirements of the respective licensure, including the payment of all applicable license fees and (ii) the status of the candidate’s license is active at the time he or she filed his or her nomination documents.”
The candidate says that would be “the biggest misrepresentation of all,” explaining:
“I have not worked as an attorney, representing clients, since about 1997.”
He discloses that he hasn’t even tried to land a job in a law office. Mednick says he’s only applied for openings as an adjudicator (he’s seeking one of the four openings for Los Angeles Superior Court commissioner) or as a teacher at a law school.
Actually, the regulation does appear to clash with the statute. To represent to the public that someone is an “attorney” or a “lawyer” is bound to “mislead the voter” where that person does not actually practice law.
So, if Mednick cannot refer to his stint as an administrative law because the time he spent at it in 2013 was inappreciable, and cannot call himself a retired referee because he had an intervening occupation, and, by his own admission cannot claim the designation of “attorney,” what’s he left with?
A blank under his name.
Mednick’s opponent is Deputy District Attorney Andrew Cooper whose designation is “Gang Homicide Prosecutor.”
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