Tuesday, March 13, 2018
Page 8
PERSPECTIVES (Column)
New Law on Ballot Designations Doesn’t Stop Shenanigans
By ROGER M. GRACE
Legislation was passed last year, now in effect, aimed at barring contrived ballot designations—such as “child molestation prosecutor”—and otherwise deterring deception. Largely, the bill, SB 235, has been successful, with 12 of the 13 deputy Los Angeles district attorneys who are seeking Los Angeles Superior Court open seats in the June 5 primary listing themselves as “Deputy District Attorney, County of Los Angeles”…yet there is one renegade prosecutor who is trying to get by with a patently impermissible designation.
At least three other candidates are also attempting to stray from requirements of the Election Code.
The culprits, as I would view them, are candidates Ken Fuller, Onica Valle Cole, David D. Diamond, and Shlomo Frieman. Some also question the ballot designation of Sydne Jane Michel, but whether or not that one is valid is not clear.
Today I’ll discuss the designations claimed by Fuller and Cole; tomorrow, the others.
Ken Fuller: He’s a deputy DA seeking election to Office No. 126. The Registrar-Recorder’s Office accepted—but is now reviewing—this designation:
“Deputy District Attorney, County of Los Angeles/Captain, U.S. Air Force.”
Plainly, that’s not allowable.
Prior to enactment of SB 235, which amends Elections Code §13107, any non-officeholder would have been restricted (as some still are) to three words describing his or her “current principal professions, vocations, or occupations.”
Among the amendments is a requirement that a judicial candidate “who is an active member of the State Bar employed by a city, county, district, state, or by the United States” either use “[w]ords designating the actual job title, as defined by statute, charter, or other governing instrument” or invoke an alternative that disallows reference to the specific work the candidate does.
Sec. 13107, as amended, adds that if the actual title is used, and “[i]f the candidate is an…employee of a county, the name of the county shall appear preceded by the words ‘County of.’ “ So, the designation, “Deputy District Attorney, County of Los Angeles” is a valid one.
But “Captain, U.S. Air Force” is not.
The new section allowing a candidate to state an “actual job title” makes no provision for adding something more.
Fuller’s wife and campaign manager, attorney Roshni Gandhi Fuller, has responded by email to an inquiry I sent to her husband. She asserts:
“Ken has two titles corresponding with his two paid positions as a government attorney. His title with the county is Deputy District Attorney, County of Los Angeles. His title with the Air Force is Captain, U.S. Air Force.”
That doesn’t wash.
There’s the matter of the missing “s.” The statute refers to “actual job title,” in the singular.
The Legislature does know how to provide for multiple listings of positions. It still contains language, not applicable to government attorneys, referring to “current principal professions, vocations, or occupations,” in the plural. Given the three-word limit, up to three jobs may be stated.
Also, a lawyer for a governmental agency has an alternative to using the “actual job title,” as mentioned. It’s permissible to use “ ‘Attorney,’ ‘Attorney at Law,’ ‘Lawyer,’ or ‘Counselor at Law’,” and either the word “Attorney” or “Lawyer” may be used along with “one other current principal profession, vocation, or occupation.”
Fuller’s wife declares:
“Ken has spent many months away from our family performing military duty and over the past 5 years has spent significant time on duty, qualifying as a principle [sic] profession. The law states that a candidate may have more than one.”
The law does state that a government attorney may have more than one “principal profession, vocation, or occupation.” But, if you take a look at the statutory language in the box below, you’ll see that, pursuant to §13107(b)(2)(B), reference to a second job is conditioned on the use of merely one word—either “Attorney” or “Lawyer”—in connection with the governmental post. By contrast, mention of a second position is not permitted, under §13107(b)(2)(A), where an “actual job title” is used.
By the way, according to definitions, in 2 California Code of Regulations §20714, promulgated by the Office of Secretary of State to supplement Elections Code §13107, Fuller’s “profession” is attorney; serving in the JAG Corps is (if more than a mere activity) a part-time “occupation.”
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Government Attorneys Provision
Elections Code §13107:
(b)(2) For a candidate for judicial office who is an active member of the State Bar employed by a city, county, district, state, or by the United States, the designation shall appear as one of the following: (A) Words designating the actual job title, as defined by statute, charter, or other governing instrument. (B) One of the following ballot designations: “Attorney,” “Attorney at Law,” “Lawyer,” or “Counselor at Law.” The designations “Attorney” and “Lawyer” may be used in combination with one other current principal profession, vocation, or occupation of the candidate, or the principal profession, vocation, or occupation of the candidate during the calendar year immediately preceding the filing of nomination documents.
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Thus, Fuller could have used the word “Attorney” or “Lawyer” along with one other “principal” job—if he has a second another one that is “principal.” He didn’t seek such a designation, but this option is of significance should the Registrar-Recorder’s Office bump the proposed designation or of there is a successful writ challenge to it.
He told the MetNews in a recent interview that he spends six to eight weeks a year as a lawyer in the JAG Corps. It’s debatable whether that’s a “principal” occupation.
Certainly, his position with the JAG Corps goes beyond being “nominal, pro forma, or titular in character,” such as the one dealt with by the Court of Appeal in 1994 in Andal v. Miller. There, a sly state senator, Robert Presley, tried to use the ballot designation “Senator/Peace Officer,” with “peace officer” being based on what was essentially an honorary position with the Sacramento Sheriff’s Office. That post, the court held, was not a “principal” one.
It said that “principal,” in the context of the statute that is now §13107, “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.”
Does an annual stint that comprises 12-15 percent of the candidate’s time in a year meet the definition of “principal”? There are no published decisions subsequent to Andal that I’m aware of which shed light on that. (Nonprecedential Los Angeles Superior Court decisions are inconsistent.) Certainly, the time commitment is “substantial,” but is it a “primary, main or leading” pursuit? I wouldn’t think so.
It is, however, at least arguable that, in light of the substantial time commitment involved, Fuller’s activity in the JAG Corps is a “principal” occupation. Yet, there’s another aspect of §13107 that comes into play.
Both before and since last year’s amendments, the statute has required that designations be disallowed that “would mislead the voter.” Fuller wants to be described as “Captain, U.S. Air Force.” He’s a captain in the U.S. Air Force Reserve. could, legitimately, have declared himself to be an “Attorney” or “Lawyer” and added “Captain, U.S. Air Force Reserve” —and that he might be able to do so should there be a successful writ challenge to his present infirm designation.
In his proposed ballot designation, He does not include the word “Reserve” in his proposed ballot designation which is, I would think, essential to conveying an accurate picture of his role.
Moreover, his reference to being a captain in the Air Force conjures up an image of someone who commands troops. That, obviously, is misleading. He’s in the JAG Corps.
An alternative designation Fuller submitted was “Judge Advocate, U.S. Air Force.” While “judge advocate” is, in fact, a term applied to lawyers in the JAG Corps, use of it on a ballot would inevitably delude voters into thinking that he acts as in the capacity of a judge, such as at a court martial. He doesn’t. He prosecutes at court martials and handles civil matters.
In 1988, the Court of Appeal, in Luke v. Superior Court, barred a Los Angeles Superior Court commissioner from using the title “Acting Judge.” It said:
“We…hold that neither a court commissioner, nor any other individual who is not a ‘judge,’ as that term is defined in the Constitution and statutes of this state, may utilize a ballot designation containing the word ‘judge’ or a derivative thereof.”
Fuller does not “judge”; to use that word in his ballot designation would be patently misleading.
Continuing under the premise, for sake of argument, that Fuller’s JAG Corps service is a “principal” occupation, avoiding an implied representation that he commands troops in combat, and remembering that a second pursuit of a government lawyer may be included only in conjunction with the word “Lawyer” or “Attorney,” where are we? We wind up with a designation such as “Lawyer/U.S. Air Force Reserve attorney.
But hold on. That implies, misleadingly, that the word “Lawyer” before the slash mark refers to service in the U.S. Air Force Reserve, and that this (rather than his position as deputy district attorney) is Fuller’s primary job.
There is no way for a government lawyer to use “Lawyer” or “Attorney” as a substitute for his or her primary job title and then refer to some secondary legal role without it creating a misimpression.
It is, then, manifest that legislative intent in permitting reference to a second “principal profession, vocation, or occupation” in conjunction with the word “Lawyer” or “Attorney” contemplates alluding to some role other than as a legal practitioner.
As it happens, I do have some knowledge of the legislative intent. SB 235 stemmed from a proposed bill drafted by my wife, Jo-Ann, when she was chair of the Los Angeles County Bar Association delegation to the Conference of California Bar Associations. That group (successor to the State Bar Conference of Delegates) unanimously approved her resolution, and it sponsored the bill, carried by Sen. Ben Allen, D-West Los Angeles.
Jo-Ann was in continual contact by email with Allen’s office, as well as other proponents, as the bill progressed. We read each other’s emails. The notion of a candidate combining two legal positions was never contemplated.
Back to the candidate’s wife. She sets forth in her email:
Arguing to the contrary, the candidate’s wife says:
“Ken has spent many months away from our family performing military duty and over the past 5 years has spent significant time on duty, qualifying as a principle [sic] profession. The law states that a candidate may have more than one.”
The law does state that a government attorney may have more than one “principal profession, vocation, or occupation.” But, pursuant to §13107(b)(2)(B), use of a second one is conditioned on use of merely one word—either “Attorney” or “Lawyer”—in connection with it. Mention of a second position is not permitted, under §13107(b)(2)(A), in connection with an “actual job title.”
By the way, according to definitions, in 2 California Code of Regulations §20714, promulgated by the Office of Secretary of State to supplement Elections Code §13107, Fuller’s profession is “attorney at law”; serving in the JAG Corps is a parttime occupation.
Fuller’s wife declares:
“We wanted to clarify that nothing in Ken’s ballot designation is misleading or incorrect. In all honesty, even reading such an insinuation brought about a lot of emotions as Ken holds his service and corresponding legal assistance to our men and women in uniform dear to his heart. Ken is a man of dignity and integrity. We would be disappointed by anyone implying otherwise. Nevertheless, we hope that this clears up any concern and confusion on your part.”
The Any confusion, I submit, is on the part of Fuller and his advisers.
Onica Valle Cole: She wants to bill herself as a “Consumer Protection Prosecutor.” But she’s not. She was fired from the Los Angeles City Attorney’s Office on Jan. 3.
The Registrar-Recorder’s Office late Friday afternoon initially accepted the her desired designation, then later that night bounced it.
Cole, an aspirant for Office No. 67, is relying on language in the statute permitting someone who is out of work to list “the principal professions, vocations, or occupations of the candidate during the calendar year immediately preceding the filing of nomination documents.” However, she is ignoring the fact that she still has a “profession”: attorney at law.
Some updating is in order of Title 2, Div. 7, Chapter 7 of the California Code of Regulations, pertaining to ballot designations, in light of the passage of SB 235. Yet, its provisions retain the force of law except to the extent that they may contravene the amendments (or preexisting provisions).
Under 2 CCR §20714—in no way inconsistent with the current statute—Cole may use “attorney,” “attorney at law,” etc., even though she is not presently practicing, and has, in fact, applied for unemployment compensation. The regulation 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.”
Cole is on active bar status.
The regulation also provides that it is only where “the candidate does not have a current principal profession, vocation or occupation at the time he or she files his or her nomination documents” that he or she “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.”
Given that Cole does have a current profession (attorney), she may not use a former occupation (prosecutor).
Fuller’s election adversaries, and their ballot designations, are Frieman, “Attorney/Volunteer Adjudicator—a designation that will be examined tomorrow—and Rene Caldwell Gilbertson, who is listed as “Senior Deputy County Counsel, County of Los Angeles.”
Cole’s opponents, and their ballot designations, are Maria Lucy Armendariz, “Judge of the State Bar Court, State Bar of California”; Dennis P. Vincent, “Deputy District Attorney, County of Los Angeles”; and Michael P. Ribons, “Arbitrator/Lawyer.”
Copyright 2018, Metropolitan News Company