Wednesday, March 14, 2018
More Candidates Try to Get by With Bogus Ballot Designations
One of Them Is About to Face a Challenge in a Writ Proceeding, as Others Also Might
By ROGER M. GRACE
Picking up from where I left off yesterday, this is the tale of judicial candidates who are seeking to gain advantage in the June 5 primary election by using ballot designations that run afoul of statutory requirements and portray them as being more than they are.
Spotlighted yesterday were Los Angeles Superior Court contenders Ken Fuller, who wants to be billed as “Deputy District Attorney, County of Los Angeles/Captain U.S. Air Force,” and Veronica Valle Cole, an unemployed former Los Angeles deputy city attorney, who seeks the label “Consumer Protection Prosecutor.”
Both proposed ballot designations are “under review” by Los Angeles County’s Office of Registrar Recorder and Office of County Counsel.
Today: a look at the ballot designations of judicial candidates David D. Diamond and Shlomo Frieman—designations which, I suggest, do not conform to statutory requirements. Diamond’s chosen description of himself will face a court challenge from his sole competitor for Office No. 118, Troy Davis; one of Frieman’s rivals for Office No. 126, Rene Caldwell Gilbertson, is pondering whether to take action.
Also, there’s the matter of the designation of Sydne Jane Michel, seeking Office No. 16, which is also “under review,” but whose designation, in my view, should withstand scrutiny.
David D. Diamond: This criminal defense lawyer seeks to generate the impression that he’s a law-and-order guy by linking himself to the police. His chosen ballot designation is “Police Commissioner/Attorney.”
He is, as he represents, a police commissioner. He’s on the board in Burbank, and currently chairs it. However, the commission has met eight times in the past year and is but an advisory body.
The latest meeting, on Feb. 15, lasted one hour and 43 minutes. Commissioners listened to two citizens voicing gripes and to department reports.
An immediate impression is that the designation is impermissible under Elections Code §13107, as amended effective Jan. 1. The portion relating to judicial candidates who are not employed by a governmental entity says:
“A candidate for superior court judge who is an active member of the State Bar and practices law as one of his or her principal professions shall use one of the following ballot designations as his or her ballot designation: ‘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….”
Could Diamond’s service on the Burbank Police Commission possibly be a “principal” pursuit? “Principal” is defined by the Court of Appeal in the 1994 case of Andal v. Miller as connoting “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.”
Diamond, in an email, insists that as a police commissioner, he does not “just go to meetings,” declaring:
“I have daily responsibilities which include reviewing daily police bulletins, reviewing citizen complaints and compliments and reviewing crime statistic reports. I also analyze budget proposals for the police department. I review and comment on the OIR (Office of Independent Review) findings of the department. We have budget meetings, training, and seminars. I also partake in the implementation of the President’s ‘policing in the 21st Century guidelines.’ We also oversee the implementation of the strategic plan with has 6-8 phases.”
He says his “work on the Police Commission is not a mere hobby, avocation, or titular position” and that he will “often spend more time on Commission work” than he devotes to his law practice.
The statement that he “often” spends more time on commission work is unclear. Is this in the context of a particular day? A specific week? This falls short of a flat statement that, overall, he devotes more time to commission duties than to practicing law.
Even if he doesn’t, it remains that the pursuit must be a “principal” one. Diamond doesn’t say just how many hours a week, on the average, he devotes to his post as a commissioner—and the tasks he faces of looking over papers and going to some meetings does not necessarily entail expenditure of a great amount of time. Diamond appears to be seeking to create an impression without presenting concrete facts showing that it would be an accurate one.
But, even assuming that he does slave away at the job, there’s the matter of it being an unpaid position. The Court of Appeal in the 1994 case of Andal v. Miller disapproved use of then-state Sen. Robert Presley’s proposed ballot designation of “Senator/Peace Officer” in his losing bid for election to the state Board of Equalization. He was a deputy on the reserves, and the position was essentially an honorary one.
The court observed that “Presley will never be compensated for his service,” and declared that the position he held thus “lacks one of the critical hallmarks of a profession, vocation or occupation.”
In the 1995 case of Andrews v. Valdez relating to a Los Angeles Superior Court election, the Court of Appeal for this district held that the title “Administrative Law Judge” could be used. Differentiating the situation from that in Andal, it said that “this title does not merely describe a ‘status’ from which Andrews derives no revenue, income, or a livelihood.”
The 1995 case of Waisbren v. Peppercorn Productions, Inc., decided by this district’s Court of Appeal, relates to the entertainment industry and has nothing to do with elections. However, it deals with what an “occupation” is. Under a regulation of the Office of Secretary of State (abbreviated by Diamond in correspondence quoted below as “S.O.S.”) membership on a government board would not fall under the category of “profession” (such as “attorney,” “physician,” “accountant”) or “vocation” (such as “minister,” “priest,” or “homemaker”).
Is it an “occupation”?
Under Waisbren, it would not be. There, a personal manager contended that he did not have to secure an “occupation” license as a talent agency, though performing the work of such an entity, because that activity wasn’t his primary occupation. He cited the definition of “occupation” in one dictionary as “the principal business of one’s life.”
The opinion says that “occupation” is not limited “to one’s ‘principal’ business endeavor” because “a person can have more than one job.” It quotes another dictionary as defining “occupation” as “a craft, trade, profession or other means of earning a living.”
According to that dictionary (“Webster’s Third New International Dictionary” (1981)), the word “occupation” is synonymous with “employment.” The appeals court found that “occupation” includes “temporary or occasional work or service for pay.”
Under these definitions, an “occupation” entails work done for pay.
Diamond, without directly addressing the matter of his position as a police commissioner being unpaid, does question the continued viability of Andal.
His email says that Andal “dealt with a very different situation (an essentially honorary ‘reserved sheriff’ designation) and which has probably been superseded by the SOS’s ballot designation regulations with respect to any broad language contained in the opinion.”
I am unaware of how a regulation promulgated by the Secretary of State’s Office can “supersede” a Court of Appeal opinion.
Court decisions can, of course, be legislatively abrogated—but by the Legislature, not by an agency in adopting regulations.
Administrative rule-making is circumscribed by Government Code §11342.2, providing:
“Whenever by the express or implied terms of any statute a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute.”
The Third District Court of Appeal in the 2014 case of Engine Manufacturers Assn. v. California Air Resources Board declared invalid any regulation that “alters or amends the governing statute or case law, or enlarges or impairs its scope.”
It does seem that Diamond is mistaken in thinking that regulations can “supersede” a Court of Appeal opinion.
That’s troubling enough.
More troubling is his representation that the secretary of state’s regulations actually purport to contradict Andal.
In fact, 2 CCR §20714 says:
“ ‘Occupation’ means the employment in which one regularly engages or follows as the means of making a livelihood.”
It provides as examples of occupations “ ‘rancher,’ ‘restaurateur,’ ‘retail salesperson,’ ‘manual laborer,’ ‘construction worker,’ ‘computer manufacturing executive,’ ‘military pilot,’ ‘secretary,’ and ‘police officer.’ ”
The secretary of state’s regulation in no way seeks to skirt, let alone trump, the pronouncement in Andal that being paid is among “the critical hallmarks of a profession, vocation or occupation.”
Troy Davis—whose ballot designation is “Deputy District Attorney, County of Los Angeles”—is Diamond’s sole rival in the race for Office No. 118. An email from him on Saturday, in response to an inquiry, says:
“On Thursday when I saw [Diamond’s] designation, I immediately contacted the registrar and ask[ed] that they review the designation. As I write this, I am just now leaving the registrar’s office. His designation remains the same currently, and I will be taking a writ.”
I suspect Davis will prevail.
Shlomo Frieman: Here we have a mystery candidate. He won’t respond to press inquiries.
The Registrar-Recorder’s Office initially accepted, then rejected, his desired designation as “Adjudicator/Attorney/Mediator.” Somebody there apparently noticed that under §13107, as amended, active members of the State Bar may use the word “Attorney” or “Lawyer” and with “one other current principal profession, vocation, or occupation”—not two others.
Now he’s now listed as “Attorney/Volunteer Adjudicator.”
If he’s a “Volunteer Adjudicator,” he’s not paid; Andal comes into play; the designation is invalid.
“Adjudicate” means “to decide.” Judges and other judicial officers adjudicate. With respect to facts, so do juries. What does Frieman—who was on inactive bar status from 2006-2016—adjudicate? Best of breed at dog shows? There’s no indication on his Facebook campaign page, and he has no campaign website.
But it really doesn’t matter what it is he decides. The only type of unpaid activity that may be used in a ballot designation, authorized by Elections Code §13107.5, is that of a “Community Volunteer.”
In the event “Volunteer Adjudicator” is disallowed by the Registrar-Recorder’s Office or stricken through a writ action, and if Frieman’s free adjudicating services come within the definition of “Community Volunteer” in 2 CCR §20714.5, he still could not use both that term and “Attorney.” Sec. 13107.5 specifies:
“A candidate may not use the designation of ‘community volunteer’ in combination with any other principal profession, vocation, or occupation designation.”
The designation should not be allowed to stand.
Frieman is in the same race as Ken Fuller, the deputy DA who wants to draw votes by including in his title “Captain, U.S. Air Force” though he serves a few weeks each year in the reserves as a JAG Corps lawyer. They are seeking Office No. 126.
A third candidate in that contest is Rene Caldwell Gilbertson, who is listed as “Senior Deputy County Counsel, County of Los Angeles.” Will she seek a writ to order a striking of the ballot designations of her opponents?
“My campaign is conducting an immediate legal review of the issues raised by both of these designations and will take any necessary action.”
Sydne Jane Michel: Questions have been raised concerning her designation as “Senior Deputy Prosecutor, City of Redondo Beach.”
The contention is being voiced that the word “Prosecutor” should be changed to “City Attorney.”
My own view is that the City of Redondo Beach is so fouled up as to titles that Michel’s good-faith use as to what is arguably her “actual job title, as defined by statute, charter, or other governing instrument,” pursuant to §13107, as amended, should be honored.
Prior to Jan. 1, only titles of elective offices could be set forth in full. Government attorneys could not use their full titles as ballot designations but were limited, along with others, to three words—and creative and evocative descriptions such as “child molestation prosecutor” came into use. A reform bill was passed last year.
Reference to the now-allowed “actual job title” is premised on the notion that one exists.
Michel insists that her “actual job title” is as she stated it to be when she filed her nominating papers. That is not indisputably so, but the basis for contesting it strikes me as frail.
The candidate says:
“My official position with Redondo Beach is ‘Senior Deputy City Prosecutor.’ The Redondo Beach City Attorney’s office is headed by City Attorney Mike Webb. It has both a civil and a criminal division. The criminal division is headed by the City Prosecutor, Melania Chavira—my immediate supervisor. I do not do any work for the civil side.
“The title I was given on the day I started at the City of Redondo Beach in December 2005 was Deputy City Prosecutor. I was promoted to Senior Deputy City Prosecutor for the City of Redondo Beach in 2009.”
Michel notes that she is “Acting City Prosecutor for the City of Redondo Beach and Hermosa Beach due to the fact that the Redondo Beach City Prosecutor is currently out on medical leave.”
A detractor points to Redondo Beach City Council Resolution CC-0607-73, adopted on July 11, 2006. It is a “classification specification” that lists duties for a “Senior Deputy City Attorney.” Among the duties are prosecutorial chores and it mentions two ways in which the senior deputy city attorney “[a]ssists the City Prosecutor.”
In response, Michele points to three provisions in the municipal code that refer to the “City Prosecutor.” That’s well and good but they don’t refer to “Senior Deputy City Prosecutor.”
There is no reference in the charter or the municipal code either to the post of “Senior Deputy City Attorney” or “Senior Deputy Prosecutor.” There is, for that matter, no reference in the charter to an office of “City Prosecutor”—yet, an assistant city attorney is appointed to that position.
There is, on the one hand, the 2006 resolution referring to “Senior Deputy City Attorney.” However, there is also a Sept. 16, 2014 resolution that refers to “Senior Deputy City Prosecutor.”
An organizational chart on the Redondo Beach website lists the position of “Senior Deputy City Attorney/Senior Deputy City Prosecutor.” I doubt that this was posted only recently in connection with Michel’s candidacy because she has been long referred to as a “Deputy City Prosecutor”—such as in a Sept. 16, 2008 Daily Journal article, a February 4, 2010 piece in the Whittier Daily News, an April 22, 2013 report in the Daily Breeze, and one that same day in the Beach Reporter.
The long and short of it is that there is no set-in-stone “actual job title” for Michele. The one she put down in her papers is not a generic description of her duties and is not made up for the purpose of the election; it’s one in actual use in the office, appears in a city council resolution, and is in no way deceptive.
It should be allowed.
Oh, and there’s the matter of Matthew Schonbrun, running as “Deputy City Attorney III, City of Los Angeles.” The “III” is a grade for salary purposes, not part of the “actual job title,” but is innocuous.
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