Wednesday, August 22, 2018
If She Gets to, I Do Too! Candidate Asserts in Writ Petition
By ROGER M. GRACE
“If Betty gets to go to Disneyland, so do I!” a petulant brat screams at her parents, stamping her foot.
“But, Patti,” her mother tries to explain, “your sister is going there with her Brownie troop. You’re not a member of the Brownies.”
Her indignation unsubsided, the child screeches:
“I don’t care! If Betty gets to go, I do, too!”
This fictional scenario is not unlike a real one, presently in litigation. Los Angeles Deputy City Attorney Patricia “Patti” Hunter insists that if her opponent in the contest for Los Angeles Superior Court Office No. 16, Sydne Jane Michel, can use the word “Prosecutor” in her ballot designation, so can she.
To recap developments, reported in a news story yesterday and reflected in an editorial, Michel on Monday filed a writ petition aimed at barring Hunter’s proposed designation on the Nov. 6 ballot, and Hunter responded with a cross-petition challenging Michel’s designation.
Under reform legislation that went into effect on Jan. 1, amending Elections Code §13107, if an attorney for a governmental entity wants to allude in a ballot designation to his or her employment with such an entity, the person must use “[w]ords designating the actual job title, as defined by statute, charter, or other governing instrument.”
Michel’s “actual job title” in Redondo Beach is “Senior Deputy City Prosecutor.” Under §13107, as amended, the geographical entity for which the government attorney works must be specified. So, Michel is listed as “Senior Deputy City Prosecutor, City of Redondo Beach.”
In the primary, Hunter’s ballot designation was: “Deputy City Attorney, City of Los Angeles.” On July 31 (the last day for making a change), Hunter claimed the designation, “Prosecuting Attorney, City of Los Angeles” for use on the Nov. 6 ballot—and County Registrar-Recorder Dean Logan accepted it.
“Prosecuting Attorney” is not an “actual job title”; it’s a description of Hunter’s function in the City Attorney’s Office and, under §13107, as amended, it’s not a permissible designation.
Brief passages from Hunter’s petition were included in yesterday’s news story. Below is a bigger chunk from that petition (with paragraph numbering omitted):
Hunter asserts that, to the extent the words “Prosecuting Attorney” and “Prosecutor” are permitted to describe her and Michel’s actual job titles, respectively, under California Elections Code section 13107, then these designations are appropriate ways for the voters to understand the two candidates’ actual job titles and to utilize these designations to help them make a well-informed choice of their preferred candidate.
To achieve this outcome, which Respondent Registrar concluded is appropriate, all the Court needs to do is deny Michel’s writ petition in this action, in which case Hunter will withdraw this Cross-Petition.
Notwithstanding the parity and principles of equal protection under the Federal and State Constitutions that are at play with regard to the current ballot designations of Hunter and Michel, Michel seeks an unfair advantage and seeks to employ a double standard—whereby Michel would use the term “Prosecutor,” but Hunter would not get to use the term “Prosecuting Attorney.”
If, on the other hand, the term “Prosecutor” or any derivation thereof, is not acceptable under California Elections Code section 13107, then Hunter alleges that neither she nor Michel be allowed to use such term.
In an abundance of caution, therefore, and insofar as Michel wants the best of both worlds—she wants to use the term Prosecutor in her designation, but prevent Hunter from using a derivation of that term in Hunter’s designation—Hunter challenges Michel’s use of that term via this Cross-Petition.
If the Court grants Michel’s Petition, but does not grant this Cross-Petition, the democratic process will be thwarted and Michel will be allowed to mislead the voters into thinking that she is the only Prosecutor in the race for Judge, Office No. 16—when that is not the case.
The petition goes on to say that “only one proper course of action should be undertaken by this Court: denying Michel’s Writ Petition,” but that if the court “grants Michel’s Writ Petition, then it must, in the interests of justice, due process, equal protection, and democracy, also grant this Cross-Petition.”
Oh? And just how do “the interests of justice, due process, equal protection, and democracy”—if not “truth, justice, and the American way”—compel the court, if it bars Hunter’s designation as a “Prosecuting Attorney,” also to strike Michel’s ballot designation?
Well, we’ll have to look at Hunter’s memorandum of points and authorities. It was filed yesterday.
Los Angeles Superior Court Judge James Chalfant, in setting up a briefing schedule on Monday, ordered that Hunter’s P&As be filed by the end of that court day, but her lawyer, in the cross-petition, granted himself an extension, declaring:
“Despite best efforts, Hunter’s counsel was not able to complete the Points and Authorities as he had hoped. Accordingly, Hunter’s counsel intends to file and serve this Cross-Petition on August 20th, and to file and serve the supporting Points and Authorities on the morning of August 21 . No prejudice should result from this slight delay, and Hunter’s counsel apologizes to the Court and opposing counsel for not being able to meet the deadline.”
Hunter’s lawyer is Bradley Hertz of the Sutton Law Firm.
Anyway, the P&As proclaim:
“If the Court denies Michel’s writ, and Hunter withdraws her cross-writ, the voters will be presented with a clear description of the two candidates; fairness and equity will have prevailed; and democracy will remain the noble experiment it has always been.”
Hertz forgot to toss in a reference to motherhood and apple pie.
He goes on to say:
“The most unfair—and legally unjustified—outcome would be for either Hunter or Michel to be able to refer to themselves [sic] by using the word ‘Prosecutor’ or a derivation thereof, but for her opponent not to be able to use that same word.
“Whatever the legislative intent was behind these recent amendments to Elections Code section 13107 with regard to judicial candidates, it could not have been to violate the equal protection clauses of the Federal and state constitutions by treating people differently under the law—even though they are similarly situated.”
Hertz knows what the legislative intent was. He testified at two legislative hearings last year against SB 235 which amended §13107, and heard the rationale articulated. The lawyer was the only person to testify against the bill or to provide written comments critical of it. His motivation was clear: the bill tightens requirements for ballot designations in judicial races, which will inevitably result in few writ challenges, meaning less business for him.
The intent was to curb the use of inventive ballot designations, such as those used in the past—“Gang Homicide Prosecutor,” for example. A lawyer for a governmental entity has limited choices as to ballot designations. The candidate may allude to his or her profession: “Attorney,” “Attorney at Law,” “Lawyer,” or “Counselor at Law.” The candidate may use word “Lawyer” or “Attorney” in connection with some other pursuit. If the candidate wants to allude to his or her specific occupation, it is required that words be used “designating the actual job title, as defined by statute, charter, or other governing instrument.”
Hunter and Michel are “similarly situated” with respect to their duties within a governmental law office. Both are assigned to prosecute accused misdemeanants. But they do not have the same “actual office title.” Michel, who works in the Office of City Prosecutor, has the word “Prosecutor” in her title. Hunter, who works in the City Attorney’s Office, does not.
Requiring the “actual office title” is aimed at removing gamesmanship and deception in judicial races. And that’s good.
(By the way, SB 235 was based on a bill my wife, Jo-Ann, drafted which was approved, without dissent, by the Conference of California Bar Associations, and sponsored by the CCBA.)
Hertz, having failed to attain non-passage or emasculation of SB 235, now seeks to circumvent it with a specious equal protection argument.
While citing the equal protection clauses of the state and federal constitutions, Hertz, tellingly, cites no cases and no statutes other than §13107.
His argument boils down to:
“If Michel can use the word ‘Prosecutor,’ so can Hunter, because I say so.”
It’s surprising he doesn’t carry his theory farther, and contend that if Michel can use the word “Senior” in her ballot designation, Hunter should be able to use the word “Veteran.” After all, she’s been in the office for 28 years.
That Hunter embraces Hertz’s arguments gives a clear indication of just what sort of judge she would be.
Copyright 2018, Metropolitan News Company