Tuesday, December 3, 2019
By a MetNews Staff Writer
What would the natural assumption be as to the occupation of someone known as “Judge Mike Cummins”?
Unless someone followed last year’s race for district attorney in San Luis Obispo County and knows that Cummins—who sat 12 years earlier on the bench in Stanislaus County and recently changed his first name to “Judge”—or has seen coverage here on his current bid for the Los Angeles Superior Court under his altered name, the impression would be that Cummins is a “judge.”
Named Michael Richard Cummins, until his petition for a name change was granted in 2017, Cummins is a candidate for Los Angeles Superior Court Office No. 72. So is Deputy Los Angeles District Attorney Emily Cole. She was quoted in last Wednesday’s issue of the METNEWS as saying she will challenge his use of “Judge Mike Cummins” on the March 3 ballot and will also contest his proposed ballot designation of “Retired Judge.”
Cummins on Thanksgiving morning dispatched an email to Cole, with a copy to this newspaper, blustering:
“So, you have now accused me, publicly, of ‘perpetrating a fraud on the voters of LA County.’ YOU KNOW that I served as a judge for over a decade, and YOU KNOW that I am, in fact, a retired Superior Court Judge. I would assume that you know also that the crime or tort of fraud requires a misrepresentation. Where is there even a SHRED of misrepresentation in ‘Judge Mike Cummins’ or ‘Retired Judge?’ In the absence of such misrepresentation, who then, here, is the one perpetrating the fraud?”
OLE UNDOUBTEDLY KNOWS that Cummins, appointed to the Stanislaus Municipal Court in 1994, served as a judge in Stanislaus County for more than 10 years. She has not asserted to the contrary.
The deputy DA also undoubtedly knows that, at the time of Cummins’s resignation from office in 2006, he was a judge of the Stanislaus Superior Court, a post to which he had ascended in 1998 through trial court unification. She has not asserted to the contrary.
It cannot be imagined that Cole is unaware that the crime of fraud “requires a misrepresentation” or that the tort of fraud “requires a misrepresentation.” She has not alleged a crime on the part of Cummins; she has not alleged a tort.
She has asserted a try by him at deception. In common parlance, an attempt to hoodwink voters, as Cummins unmistakably is undertaking to do, is a fraud.
Dictionary definitions of “fraud” include “a piece of trickery,” “something that is not what it pretends,” “any deception, trickery, or humbug.”
Cummins asks, rhetorically, “who then, here, is the one perpetrating the fraud?”—implying that Cole is that person. If he supposes that “fraud” necessarily connotes a crime or a tort (though it does not), does he intend to accuse her of a criminal act or a tort?
Of course, his premise that there is no misrepresentation by him is false; there is. The name he adopted inescapably conveys the impression that he is a sitting judge, and he isn’t. His name-change was a vehicle for trickery.
UMMINS IS PRECLUDED FROM USING the ballot designation of “Retired Judge.” While it does ameliorate the mischief caused by the use of “Judge” as his first name, it is contrary to a requirement of the Code of Regulations, which has the force of law. Sec. 20716(h)(4) provides:
“A candidate may not use the word “retired” in his or her ballot designation if that candidate possesses another more recent, intervening principal profession, vocation, or occupation.”
“I practiced law in San Luis Obispo and northern Santa Barbara Counties between late 2006 and January 2017.”
It is plain that under §20716(h)(4), Cummins may not use the ballot designation of “Retired Judge.” Moreover, Cummins knows that.
A June 1, 2018 editorial in the San Luis Obispo Tribune renders the fact of that knowledge clear. It relates:
“[Cummins] shares why he chose to change his name. He told us he was considering running for the statewide office of insurance commissioner, and was irked because he was told he could not be identified as a ‘retired judge’ on the ballot, since he had recently worked as an attorney. (Those same rules apply to San Luis Obispo County ballots.)
“So, Cummins decided to make ‘Judge; his first name, though he wound up not running for insurance commissioner and later decided to run for San Luis Obispo County district attorney.”
He was quoted on May 15, 2018, by KSBY, a San Luis Obispo television station, as saying:
“I was considering running for a state office and I realized that I couldn’t use ‘Retired Judge’ because I’d done something in the interim. That’s the rule and a lot of people think that’s kind of a silly rule. It seemed to me that it was denying me a legitimate opportunity to use something on the ballot that I otherwise should have been entitled to so I changed my name.”
Thus, he knew the Code of Regulations barred him from using a ballot designation of “Retired Judge,” didn’t like the rule, and skirted it by changing his name to create the illusion that he presently holds the title of “Judge.” And now, he’s using a ballot designation he has publicly acknowledged is impermissible. If the ballot designation is yanked, as it must be, he can contend, as a defense to any criticism that he is falsely pretending to be an incumbent judge, that he tried to indicate to the contrary.
These shenanigans are not the mark of a man who, as a judge, would faithfully apply the law.
T IS REGRETTABLE THAT the San Luis Obispo Superior Court’s then-presiding judge, Barry T. LaBarbera (now retired), granted Cummins’s petition. It should have been obvious to him that permitting a person to use a first name that implies a title could lead to deception, and undue advantage, whether the name were used on a ballot, a loan application, in contractual dealings, or in making a reservation at a restaurant.
Court authorization of the use of a first name such as “Judge,” “Justice,” “Honorable,” “Countess,” “Commissioner,” “General,” “Reverend,” “Rabbi,” “Professor,” or the like, is destined to promote misconceptions, if not facilitating hoaxes and swindles.
A person may change his or her name without court action—a prerogative under common law—or with court approval, pursuant to statutes, Code of Civil Procedure §1275 et seq. But it has been held that neither procedure may be utilized to alter a moniker where the effect is to create fraud or confusion.
LaBarbera’s ruling promotes confusion, at a minimum, and was irresponsible.
We urge enactment of an amendment to one of the change-of-name statutes to prohibit court approval of a first name or middle name that constitutes a title or stature that would be barred as a ballot designation. Anything that would be deceptive in an election context surely would be misleading in other circumstances.
HILE CUMMINS’S PROPOSED BALLOT DESIGNATION must be disallowed under §20716(h)(4), it would take some inventive argumentation by Cole to establish that she has a remedy with respect to the use of his legal name on the ballot, notwithstanding that the first name of “Judge” is one which he should not have been allowed to acquire.
A collateral attack on LaBarbera’s granting of the change-of-name petition would be novel. While the Elections Code authorizes writ petitions to attack deceptive ballot designations, it says nothing about assailing misleading names.
Justice clearly would be served by an order that Cummins be listed on the March 3 ballot as “J. Michael Cummins” or in some other way that does not promote the false impression that he is a judge of the Los Angeles Superior Court. But the proclamation in Civil Code §3523 that “[f]or every wrong there is a remedy” is a notorious falsehood.
It is to be hoped that if Cummins is identified on the ballot as “Judge Mike Cummins,” as might well be expected—and on slate mailers, leaflets, and lawn signs, if the campaign musters necessary funds—voters in Los Angeles County will not be fooled into thinking that he is a sitting jurist, any more than the electorate in San Luis Obispo was hoodwinked by his ploy. However, the amount of media attention here to judicial races is apt to be negligible, as it usually is, while the amount of coverage to the DA’s race last year in San Luis Obispo was heavy.
UMMINS ALSO SAID IN HIS THANKSGIVING EMAIL to Cole:
“Further, it appears that you are running your campaign directly out of the DA’s office, on the People’s clock and dime, repeatedly using Los Angeles County government resources for personal gain. Accordingly, be advised that, within the next several days, I will be requesting that Los Angeles County, pursuant to the California Public Records Act, provide to me all of your campaign e-mail correspondence sent from or received by Ecole@da.lacounty.gov.”
Cole did send Cummins a Nov. 7 email from that account articulating her view that his tentative representations as to his status were inappropriate.
What apparently eludes Cummins is that the California Public Records Act (“CPRA”) pertains, not surprisingly, to public records. Government Code §6252 contains definitions for the CPRA, including this one (with emphasis added):
“ ‘Public records’ includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”
The California Supreme held in 2017 in City of San Jose v. Superior Court “that to qualify as a public record under CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the public’s business,” adding that “[c]ommunications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.”
Cummins is asserting that Cole used her office account to send emails that did not relate to the public’s business, yet fails to grasp that this very factor renders any such communications beyond the reach of the CPRA.
Cole’s email to Cummins relating to her campaign, although not a missive promoting her candidacy, was, technically, a misstep. Although her status as a political neophyte does not fully excuse it, surely it was conduct far less than reprehensible.
Cummins is at liberty to request that the DA’s Office ascertain if there were other instances of misuse by Cole of her email account, but he has no conceivable cause of action under the CPRA, as any competent lawyer would recognize.
It is reasonable inferable that we will endorse Cole—but not simply by default, not just because she isn’t Cummins. Our endorsement will come in a separate editorial pointing to her attributes, which are impressive.
Copyright 2019, Metropolitan News Company