Friday, March 28, 2014
Page 6
PERSPECTIVES (Column)
Judge Lavin Fails to Excise Phony Ballot Designation From the Ballot
By ROGER M. GRACE
Judge Luis Lavin, who presides in a Los Angeles Superior Court writs department, on Tuesday denied relief to a judicial candidate who was contesting an opponent’s ballot designation of “Los Angeles Prosecutor.” Under the facts, I doubt that many other judges would have ruled the same way.
As recited here before, candidate B. Otis Felder—who also goes by the names of “Brian Felder” and “Otis Felder”—is not a prosecutor. He participated, as an unpaid extern, in the Los Angeles City Attorney’s Office “Volunteer Attorneys Program” from March 4, 2013, until last Feb. 21.
The seminal question before Lavin was: Can any reference be made to Felder’s erstwhile role? If that question were answered in the affirmative, the question next presented was: Is the present phraseology of the ballot designation nonetheless misleading?
Lavin answered both questions in the negative. I submit that his answers were wrong.
The relevance of Felder having left the program is that under California Code of Regulations §20710, a ballot designation can’t relate to a prior job if the candidate has a present one.
Petitioner Dayan Mathai, a deputy district attorney who is one Felder’s two rivals in the race for Los Angeles Superior Court Office No. 61, asserted that Felder has another job—one he maintained throughout his stint in the prosecutor training program, and had before that—as a private practitioner, specializing in maritime cases.
Felder filed a declaration saying that he did “not represent any party in a civil proceeding while working at the City Attorney [Office],” adding:
“Although I did receive some income during the period from past work on matters as a civil lawyer, I was not primarily engaged as an admiralty lawyer during my appointment.”
Mathai did fail to support the allegation in his petition (which he personally drafted) that “Felder’s temporary, volunteer ‘externship’ at the City Attorney’s Office was never his ‘principal occupation’….” It was, although an unpaid position, a full-time one—and even part-time pursuits qualify as designations if they entail a “substantial” amount of time.
What Mathai succeeded in doing was to show that Felder, at the time he filed his nominating papers and worksheet on March 6, was holding himself out to the public as a private practitioner, specializing in maritime law, whose services were available for hire.
The candidate provided a screenshot of Felder’s website, which he said in a declaration was “downloaded between 2/10/14 and 3/6/14.” The website, though little more than a business card against the setting of an ocean, promotes his services as an admiralty and maritime attorney.
More meaningfully, Mathai attached a screenshot, downloaded March 19, of Felder’s Linkedln profile. It listed his current activity as “Attorney at Law Offices of Otis Felder” and identified him as:
“Attorney
“Law Offices of Otis Felder
“January 2008 - Present (6 years 3 months)”
He was also identified as “General Counsel” during that same time period for “OFP”—Otis Felder Productions.
Felder thus represented to the world that he had, continuously, been a practicing lawyer since 2008.
(The representation was presumably quite recently posted. Even if he had opened his law office on Jan. 1, 2008. the six-year and three-months point would not be reached until April 1, 2014.)
Yet, Lavin declared that Mathai had failed to show that during the period from Feb. 21, when Felder left his assignment at the City Attorney’s Office, to March 6, when he filed his papers, Felder had actually functioned as a private practitioner. He apparently accepted the oral representation of Felder’s lawyer, uttered at the hearing, that during those days, Felder was simply devoting his attention to his candidacy.
What Lavin failed to grasp was that Felder was, on March 6, and prior to that date, a lawyer with a shingle hanging.
The fact that a merchant, advising goods for sale, has no customers, does not mean that the person is not a merchant; the fact that a lawyer, advertising his or her services for sale, has no clients, does not detract from the fact that the person is engaged in a law practice.
Under a provision of the Code of Regulations, a candidate may list a profession for which he or she is licensed, on active status, even if not presently practicing. That regulation would appear to contravene Elections Code §13107(b) which bars designations which would tend to “mislead the voter.” (If, for example, a lawyer had returned to active bar status right before filing papers to run for a judgeship, had been on inactive status for years, and was the proprietor of a bagel shop on Pacific Coast Highway, a designation as an attorney surely would mislead voters.) On the other hand, where someone—such as Felder—is actively engaged in attempting to woo clients to hire him to provide legal services, the labeling of that person as an “attorney” or a “lawyer” surely would not be misleading…and a designation reflecting a job held earlier would, certainly, delude the voter.
Any reference to Felder’s erstwhile activities in assisting a prosecutorial agency should have been barred.
Even if reference to that activity were proper, is the designation chosen by the Office of Registrar Recorder (after rejecting three of Felder’s own proposed designations) appropriate?
No designation is appropriate which would tend to “mislead the voter”—and this one does.
Use of the word “prosecutor” is bad enough, implying that it is Felder’s current occupation. Moreover, preceding it with the words “Los Angeles” implies that it is an official title, whether that of the prosecutor for the City of Los Angeles (the city attorney) or for the county (district attorney).
Even if the status as a deputy is assumed, the image a voter is bound to have is that of someone working for a public agency, having been found to meet the hiring standards of that agency, who is a paid, permanent employee—not a trainee, a temp, or an unpaid helper.
In written opposition to the writ petition, Felder attached a “Pro Bono Participating Volunteer Attorney Training Program Agreement” which he signed Feb. 6, 2013. Lavin seized on the wording in that agreement in concluding that Felder had been a deputy city attorney, hence a “prosecutor.” It contains this language:
“I agree to accept the appointment as a volunteer Deputy City Attorney, serving the City of Los Angeles in the capacity of a criminal misdemeanor prosecutor representing the People of the State of California on matters assigned to me by the Supervising Attorney.”
On the copy attached, the words “Deputy City Attorney” had been underscored in that sentence with a broad-tipped marker. However, the entire phrase used was “volunteer Deputy City Attorney.”
In two other places on the exhibit, there was an underscoring of the words “Deputy City Attorney” but no emphasis on the modifying words that preceded.
Apparently influenced by underscoring, Lavin declared at Tuesday’s hearing:
“Mr. Felder served as a deputy city attorney. He had the title as a deputy city attorney.
“He prosecuted cases as a deputy city attorney for the People of the State of California.”
A “deputy city attorney” would, of course, qualify for the designation of “prosecutor,” provided that he or she were on the prosecutorial side of the office. But Felder was not, in fact, a “deputy city attorney.” At most, he was—if the form he signed is somehow regarded as definitive—a “volunteer deputy city attorney” and thus a “volunteer prosecutor.”
Noteworthy is that Felder’s attorney, William Enger, pointed to no authority—no Charter provision, no city Administrative Code section, no ordinance, rule, regulation or policy—authorizing the denomination of a volunteer attorney as any species of a “deputy city attorney.” (In fact, when then-City Attorney Carmen Trutanich instituted the program, he used the titles “Reserve Deputy City Attorney” and “Volunteer Deputy City Attorney”…but those were concocted by his administration, sans official sanction.)
Making the case for Mathai, the opposition drafted by Enger points to the very provision of city law that describes the status of those attorneys who provide services without pay, for sake of gaining experience. Enger wrote:
“The Los Angles Administrative Code authorizes the City Attorney to appoint city prosecutors, who work stating ‘Notwithstanding any other ordinance provisions, the City Attorney is hereby authorized to appoint temporary pro bono publico prosecutors’ (Los Angeles Administrative Code § 20.23.1[)].”
In his effort to show that Felder was, in fact, a prosecutor, Enger set the words “appoint” and “prosecutors” in bold face. He misses the real significance of the section: it points to how Felder’s ballot designation would accurately read, if the fact of his departure from the role of a prosecutor is ignored.
The section says, in full:
“Notwithstanding any other ordinance provisions, the City Attorney is hereby authorized to appoint temporary pro bono publico prosecutors. Such attorneys shall be volunteer workers only and shall serve gratuitously.
“The City Attorney, with or without cause, may terminate any participant at any time. Each attorney, as a condition of appointment, shall execute appropriate documents acknowledging their obligation to the service of the City and further evidencing any waiver of all compensation and employment benefits including, but not limited to, enrollment in the City Employee’s Retirement System, accrual or receipt of sick leave, vacation, holidays, hospitalization and dental benefits.”
These “volunteer workers” are not denominated “deputy city attorneys”; they are called “temporary pro bono publico prosecutors.”
Among various distinctions between such volunteer attorneys and actual deputy city attorneys is one forth in the immediately preceding Administrative Code section. It is specified that deputy city attorneys must have been members of the State Bar for two years. There is no such requirement for voluntary attorneys.
A ballot designation of “Temporary Pro Bono Publico Prosecutor” would be accurate—again, if the matter of Felder having abandoned his prosecutorial position is disregarded, as it should not be—but would run afoul of the three-word limit imposed on non-office-holders by Elections Code §13107(a)(3). At the hearing, Mathai, having read the tentative ruling denying a writ, suggested the alternatives of “Pro Bono Prosecutor” or “Volunteer Prosecutor.”
Given that the Latin term “pro bono” is not apt to be widely understood by voters, only the latter designation would meaningfully communicate what Felder’s role had been.
Why wouldn’t Lavin order that the designation be changed to reflect Felder’s actual former status as a “Volunteer Prosecutor”? The reason he gave was the one advanced by the deputy county counsel who was present: it would be unfair to Los Angeles Superior Court Commissioner Jacqueline H. Lewis, also a candidate in the race, who had not been named as a real party in interest.
She probably should have been. She wasn’t. Lavin asked on March 21 for briefing on the significance of the omission by March 24. Mathai filed a declaration under penalty of perjury on March 24 saying that all documents filed in the case had been e-mailed to Lewis and she affirmed to him by telephone what she had been quoted in the MetNews as saying: that she did not want to get involved in the ballot designation dispute.
Lewis could have filed her own writ petition if she gave a hoot about Felder’s declaration. She didn’t.
Lewis knew of the proceedings stemming from Mathai’s petition. She chose not to participate. Mathai’s petition asked that the designation of “Los Angeles Prosecutor” be disallowed. Lewis is a commissioner of the Los Angeles Superior Court and it cannot be assumed she is a ninny who did not realize that the granting of the petition would entail the selection of some other designation.
From the standpoint of common sense, there would have been no affront to Lewis’s due process rights had Lavin done as Mathai suggested. Once he erroneously determined that a reference to Felder’s old job was not barred, he could at least have foreclosed the generating of a false impression to voters by decreeing that Felder be designated, if at all, as a “Volunteer Prosecutor” or that an alternative designation he proposed be used: “Los Angeles Attorney.”
ADDENDUM: The sexual orientation of a candidate should never be a factor in gauging the person’s fitness for office—and surely is of no pertinence to the legal question of the appropriateness of a ballot designation. Yet, Felder made a point of his homosexuality in his opposition to the writ petition, giving rise to a suspicion as to his motivation. Why he would do this would seem explainable only by the fact that the case had been assigned to Lavin, and Lavin is openly gay.
Felder said in his declaration:
“My husband, who is a Los Angeles County Deputy Sheriff, suggested that I consider investigating other career opportunities if I wanted to pursue public service in criminal justice.”
Advice to Felder from his husband, Steve Johnson, which led him to join the Volunteer Attorneys Program, had no conceivable relevance to the issue of the validity of the ballot designation. Can it reasonably be supposed that Felder would have mentioned his having a husband if were not that Lavin has one also?
To attempt to win sympathy of the judge by interjecting a gratuitous reference to the party’s religion, knowing that the judge is a devout adherent to the same faith, or sneaking in any other factor that would communicate to the judge some sort of kinship, would be reprehensible. If Felder did not have the motivation that his conduct suggests, he still showed appallingly bad judgment in inserting an irrelevancy that would spark such a suspicion.
Copyright 2014, Metropolitan News Company