SB 235 Would Meaningfully Reform Judicial Elections

Thursday, April 6, 2017

Page 8

EDITORIAL

SB 235 Would Meaningfully Reform Judicial Elections

O MORE WOULD deputy district attorneys be able to utilize such fanciful ballot designations as “Child Molestation Prosecutor” and “Gang Homicide Prosecutor,” should SB 235 be enacted into law.

No more would a deputy city attorney be able to run as a “supervising prosecuting attorney,” implying a higher status than a deputy district attorney lacking supervisorial status.

No more would government attorneys be able to portray themselves as serving a role that they play in only a part-time capacity without so indicating.

And no more would a lawyer who had not practiced in years and, with her husband, ran a baked goods store be able to run for a judgeship as an “Attorney at Law.”

Changes that would be made by SB 235 would not eliminate writ proceedings by candidates challenging rivals’ ballot designations, but inevitably would pare the number. It would diminish instances of voters being seduced by ballot designations into voting for candidates of lesser merit.

We urge passage of the measure.

T SHOULD NOT be surprising that we would support SB 235. Its genesis is an editorial in this newspaper on Sept. 23, 2014, detailing how Elections Code §13107 should be amended to reduce the flimflamming of voters in judicial elections.

The following year, MetNews Co-Publisher Jo-Ann W. Grace, then chair of the Los Angeles County Bar Association’s delegation to the statewide Conference of California Bar Associations (successor to the State Bar Conference of Delegates), drafted a proposed bill containing changes urged by the editorial, and it met with the delegation’s favor. It was circulated statewide; no bar association opposed any portion of it; it was approved on the consent calendar, and the CCBA lobbyist embarked on finding a legislator to introduce it.

It is being carried by state Sen. Ben Allen, D-Santa Monica, the 2015-16 chair of the Senate Elections and Constitutional Amendments Committee. Allen, whose law degree is from Boalt Hall, has been a member of the State Bar since 2008.

B 235 WOULD add two subsections to Elections Code §13107—which would become (b) and (c)—dealing solely with Superior Court races. It would also tidy up existing portions by eliminating references to judicial races and switch the order of some language to render it applicable to all election contests.

Below is the text of the proposed new portions applying exclusively to judicial races, with our commentary on why it is necessary—or, in one instance, why it should be amended.

(b) (1) Except as specified in paragraph (2), for candidates for judicial office, immediately under the name of each candidate, and not separated from the name by any line, only one of the following designations may appear at the option of the candidate:

(A) Words designating the city, county, district, state, or federal office held by the candidate at the time of filing the nomination documents.

(B) The word “incumbent” if the candidate is a candidate for the same office that he or she holds at the time of filing the nomination papers.

(C) 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.

These are the same alternatives applicable to nonjudicial races, except that (A) and (B) are not restricted here to office-holders who were elected, as opposed to having been appointed.

Our sole criticism of the bill (and it’s a minor one) is that the third alternative—which is identical to that applicable in nonjudicial races—was not altered, as proposed in the CCBA bill. As drafted by Grace, it would change the words “professions,” “vocations,” and “occupations” to the singular. In nonjudicial races, such as those for legislative posts, a designation such a “businessman/rancher/author” might be of relevance to voters as reflecting the candidate’s diverse pursuits. In a judicial race, the focus should be on what role the candidate plays in the legal system—or, if the person is not chiefly occupied in the field of law, what he or she does for a living.

(2) For a candidate for judicial office who is an attorney employed by a city, county, district, state or by the United States, the designation shall appear as words designating the actual job title, as defined by statute, charter, or other governing instrument.

This is the key provision. It would end the current games-playing by government attorneys.

Looking at last year’s election in this county, alone, then-Deputy District Attorney Debra Archuleta used the ballot designation of “Violent Crimes Prosecutor” notwithstanding that for more than a year, she had been in the White Collar Crimes Division which does not prosecute persons charged with violent crimes. However, she had held onto a wife-beating case that was tried in December, 2014, resulting in a hung jury. A retrial had not yet occurred—and some of her colleagues insisted that the case should have been resolved by then, but was being dragged out by Archuleta for the purpose of justifying the ballot designation. She neglected work in her present assignment while campaigning; able counsel persuaded a judge that working on this one case was her primary task; a petition seeking a writ ordering the registrar-recorder to bounce the designation was denied prior to the primary, and again during the general election cycle. Archuleta was elected.

Her opponent in the run-off, Deputy District Attorney Steven Schreiner, who brought the writ proceedings, had his own chosen designation—“Gang Murder Prosecutor”—judicially vetoed in the primary. It was challenged by another candidate, Deputy District Attorney Paul Kim. Schreiner was permitted to run as a “Gang Homicide Prosecutor.”

Also last year, a judge blocked Deputy District Attorney Javier Perez from billing himself as a “Supervising Gang Prosecutor.” Yes, he was a supervising deputy, but not all that many cases his branch handles involve gangs. The ballot label that was allowed was “Supervising Criminal Prosecutor.” He lost to then-Deputy District Attorney Susan Jung Townsend, whose unchallenged description was “Criminal Fraud Prosecutor.”

An immigration attorney, Alicia Molina, tried to run as a “Domestic Violence Attorney” based on her volunteer efforts twice a month at a low-cost divorce clinic. Some of the cases there involve domestic violence. A judge granted a writ, and she was identified as an “Attorney at Law.” She lost to Efraim Matthew Aceves, termed a “Child Molestation Prosecutor.” While we view Aceves as clearly the better candidate, he surely would have won, given the respective ballot designations, even if he hadn’t been.

Deputy Public Defender Tami L. Warren, who challenged Los Angeles Superior Court Judge Kathryn A. Solorzano, sought to run as a “Court Appointed Attorney,” a title so obviously bogus that the Office of Registrar Recorder rejected it. It did allow the designation of “Violent Crimes Counsel.” After all, many of those she defends are accused of violent crimes, Warren reasoned. Solorzano—who was labeled “Superior Court Judge”—sought a writ on the ground that voters would be misled into thinking Warren was a prosecutor. Warren won in court but lost at the polls. (The reasoning of the judge in that case was at odds with that of a jurist who, in 2014, disallowed the designation of criminal defense attorney Andrew Stein as “Gang Homicide Attorney” inasmuch as it implied he was a prosecutor.)

Emotion-gripping ballot designations are potent. In 2014, Carol Najera, a deputy district attorney of meager abilities, ran as a “Violent Crimes Prosecutor.” She defeated James Pierce, a Los Angeles Superior Court judge with 25 years of experience on the bench. Aside from occasional gruffness, the judge was providing admirable service; Najera, now a judge, is not.

Allowing general descriptions of posts in government law offices can lead to misconceptions. For example, in a 2014 race, Deputy Los Angeles City Attorney Songhai “Sunny” Armstead ran as a “Supervising Criminal Prosecutor” and Deputy District Attorney Teresa P. Magno as a “Gang Murder Prosecutor.” Although Magno won, it might well have been assumed by voters that Armstead (who has since been appointed to the court) supervised Magno. That same year, in the primary, Los Angeles Deputy City Attorney Tom Griego had the designation of “Criminal Gang Prosecutor” while Schreiner (who did not make it into the run-off) had a similar description: “Gang Homicide Prosecutor.” Nothing tipped off voters to the fact that that Schreiner handled felony prosecutions while Griego merely prosecuted accused misdemeanants.

(3) A designation made pursuant to subparagraph (A) of paragraph (1) or paragraph (2) shall also contain relevant qualifiers, as follows:

(A) If the candidate is an official or employee of a city, the name of the city shall appear preceded by the words “City of.”

(B) If the candidate is an official or employee of a county, the name of the county shall appear preceded by the words “County of.”

This additional language is not essential, but is potentially helpful to the cause of avoiding misimpressions among voters in judicial elections.

Misleading designations are nothing new. (Case in point: in 1994, then-Assemblyman Terry Friedman ran for the Los Angeles Superior Court—successfully—as a “Law Professor/Lawmaker”; he had been a part-time night school adjunct professor but had not taught within “the calendar year immediately preceding the filing of nomination documents,” a required by the statute. The designation was allowed as a “primary” occupation because, within that preceding calendar year, he had corrected final exam papers.) However, use of inventive designations seeking to rouse passions is a relatively recent development, originating in Los Angeles County, and spreading elsewhere.

Other forms of deception that would presently be permissible under the Elections Code, though they have not yet surfaced, are apt to materialize. Wheresuch a prospect is spotted, it obviously should be legislatively blocked.

As it stand, there is nothing to prevent, by way of example, a member of the Sonoma trial bench, who would rather live in San Diego County, running there for an open seat as a “Superior Court Judge.” That designation surely would imply incumbency and, thus, familiarity with local ordinances, court rules, customs, traditions, history, places—and even such matters as the location of the courthouses.

That hypothetical candidate could run as a “Judge of the Sonoma Superior Court,” under ¶1(A). However, without this additional language, that candidate would not be obliged to so, being free, otherwise, to use three words under ¶1(C) without a geographical designation.

Even if a member of a government law office were obliged to use “words designating the actual job title,” as prescribed by the proposed ¶2 above, there could, without this additional language, be mischief. A member of the Lassen County Office of District Attorney who wanted to foray to Riverside County and become a judge there—but had never stepped foot in a Riverside courtroom—could represent himself or herself on the ballot as a “Deputy District Attorney,” implying service as a prosecutor within that county.

It is true that we have a statewide court system; the same codes, the same Supreme Court opinions and published Court of Appeal opinions apply in each county; sitting and retired judges, serving on assignment, are able to go off to other counties and perform without clumsiness. Yet, it may well be perceived as preferable that a lawyer seeking a judgeship be a part of the local legal community, aware of local attitudes, problems, and needs.

The wording in ¶3(A) and (B) would require that information be provided to voters that could be of significance, and reasonably so, to their decisions.

(C) If the candidate performs quasi-judicial functions for a governmental agency, the full name of the agency shall be included.

This is the Bacigalupo Measure.

In 2002, then-State Bar Court Judge Paul Bacigalupo was a candidate for the Los Angeles Superior Court. He could not run as “State Bar Court Judge”—which would, incontestably, have been accurate—because of the three-word limit.

His chosen designation was “Judge, State Bar,” which was imprecise. Beyond that, according to an argument advanced in a writ petition filed prior to the June primary, the designation would tend to fool the electorate into thinking that Bacigalupo was already a Superior Court judge. The petition—by a non-candidate lawyer, acting in his capacity as a voter—was denied by a Superior Court judge. After Bacigalupo made into a November run-off, a new writ petition was filed, this time in the Court of Appeal, by a different voter, Jared Moses, now a Superior Court judge. Div. Three granted expedited review and denied the writ, saying, in an unpublished opinion, that Bacigalupo had chosen “a reasonable ballot designation,” though grousing:

“This is not to say that ‘Judge, State Bar’ is the only or even the best three-word ballot designation for a candidate who is a hearing judge of the State Bar Court, e.g., ‘State Bar Judge,’ or ‘Bar Hearing Judge.’ ”

There would appear to be little difference between “Judge, State Bar” and “State Bar Judge,” and voters would undoubtedly be bewildered as to what a “Bar Hearing Judge” is.

The problem was the three-word limit that applied. (Although the word limitation does not affect the designation of a person who holds a state “office,” an administrative law judge for a state agency is not placed in that category.)

SB 235 would not only remove the three-word restriction for administrative law judges, but would require that their full titles be used, including specification of the agency for which they work.

(D) If the candidate is employed for fewer than 30 hours per week as an official or employee of a city, county, district, state, or the United States, the phrase “Part-time” shall appear before the designation.

In 2014, Helen Kim, who was a part-time filing deputy in the Los Angeles County District Attorney’s Office, picked the designation “Violent Crimes Prosecutor” in her race for a Superior Court open seat. The designation was challenged by fulltime Deputy District Attorney (now Judge) Alison Matsumoto Estrada, who was running as a “Government Corruption Prosecutor.” At the hearing on Estrada’s writ petition, Los Angeles Superior Court Judge James Chalfant disallowed the word “Violent” because most of Kim’s filings did not involve crimes that were deemed “violent” for sentencing purposes. The judge then pressured the parties into agreeing that she could be listed as a “Criminal Prosecutor”—notwithstanding that Kim was not engaged in prosecuting any alleged criminals, but only recommending prosecutions.

The designation that was virtually mandated by Chalfant ran afoul of a provision of §13107 barring words that “would mislead the voter,” ascribing to Kim a role she did not actually perform. A permissible designation would have been “Deputy District Attorney,” Kim’s “principal” occupation, but even that, though in accordance with the statute, would not have adequately informed voters of her true status with the county’s prosecutorial office.

A precise designation of Kim—as a “Part-time Los Angeles County Deputy District Attorney”—would have been barred in 2014 (as now) owing to the three-word limit. Under SB 235, use of the precise designation would be required.

(c) For purposes of this section, a candidate for superior court judge who is a member of the State Bar, whether on active or inactive status, shall not use the word “Attorney,” “Lawyer,” or “Counselor at Law,” or any variation of those words, if, during the year preceding the filing of the nomination documents, the candidate did not derive at least half of his or her income from the practice of law or did not practice law during at least half of the time he or she spent working in the profession, vocation, or occupation.

And this brings up the matter of The Bagel Lady. That’s how Lynn D. Olson, a 2006 candidate for a Los Angeles Superior Court seat, was referred to in the South Bay where she and her husband ran Manhattan Bread and Bagel, a bakery and sandwich shop they had opened nine years earlier.

Olson had not practiced law in years. She went on voluntary inactive status on Jan. 1, 1996, resumed active status on Feb. 10, 1998, and again became inactive on Jan. 1, 1999. She remained ineligible to practice law for a period just three days shy of seven years. On Dec. 29, 2005, she yet again switched to active membership—right before becoming a candidate.

Yet, her ballot designation was “Attorney at Law.”

The judge she challenged (and defeated)—Dzintra Janavs—might well have succeeded if she had contested the designation, but the election challenge, at the outset, did not appear to be a serious one, and Janavs, who was in the Writs and Receivers Department, might well have felt uncomfortable being a seeker of a writ.

While Olson’s designation would appear to be one that clearly “would mislead the voter,” it remains that California Code of Regulations §20714, promulgated by the Office of Secretary of State, provides:

“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.”

Over the past several years, a pharmacist, a computer programmer, a flight attendant and a police officer have run for judgeships in this county. They had law licenses, but were not engaged primarily in the practice of law, if at all. Under the regulation, each was entitled to be listed as an attorney.

While a court might well find that the regulation contradicts the statute, there is uncertainty. SB 235 would make it clear that one who has not been practicing law may not use a designation that gives voters a contrary impression.

HE JUNE 1, 2016 EDITION of the Los Angeles Times contains an insightful feature by staff writer Marisa Gerber bearing the headline, “Campaigning for a judge’s seat? A sexier title could get you elected—or sued.” It observes:

“Attempts to craft the loftiest or toughest-sounding ballot titles have triggered legal fights and accusations of deception that have become as much a part of judicial elections in LA. County as posting political campaign signs—a dysfunctional reality that has spurred some legal experts to call for election reform.”

The article reports that Grace “has drafted proposed legislation that would require employees of governmental law offices to use only their official titles for ballot designations,” but notes:

“The proposal hasn’t gained much traction.”

Now it has. It’s a bill.

And that bill—SB 235—is one worthy of being passed by the Legislature and signed into law.