Tuesday, December 10, 2019
By ROGER M. GRACE
What are the chances of a judge of the Los Angeles Superior Court blocking a man from using his actual first name on the ballot?
This query is in reference, of course, to the upcoming challenge to trickster “Judge Mike Cummins” having that name appear on the March 3 ballot as a candidate for Los Angeles Superior Court Office No. 76. Cummins isn’t a judge but, in 2017, had his name legally changed, with his first name being “Judge.”
Without judicial intervention, the ballot will include this choice for voters:
JUDGE MIKE CUMMINS
It is inevitable that voters would assume, from that, that someone named Mike Cummins is a retired judge of the Los Angeles Superior Court (after all, he’s running in Los Angeles) who found retirement boring and wants to go back to work. The image is that of a seasoned judge with know-how who wants to resume service.
(It would hardly be supposed by voters that Cummins was appointed to a municipal court in an obscure county—Stanislaus—got elevated to the Superior Court there as the result of unification, and resigned in 2006 because he perceived that, as he has admitted, he didn’t fit in as a judge.)
His opponent, Los Angeles Deputy District Attorney Emily Cole, has said that she will file a writ petition in an effort to block the Registrar-Recorder’s Office from listing Cummins’s first name of “Judge” on the ballot. (There are alternatives such as “J. Mike Cummins” or “J.M. Cummins.”)
But “Judge” is Cummins’s legal name, irresponsible as a then-judge of the San Luis Obispo Superior Court, Barry Labarbera, was in granting the change-of-name petition.
How could a judge of the Los Angeles Superior Court possibly have the power to bar the use of a candidate’s actual name from the ballot?
The answer is inherent powers.
To be sure, invocation of inherent powers occurs inappropriately in the form of a judge’s muscle-flexing in order to effect his or her wished-for result where there’s no clear justification for acting in the absence of express authority. And that would be particularly obnoxious in the context of interceding in the election process without an unmistakable need to thwart a threatened subversion of that process.
Here, there is—as is rarely presented—such an unmistakable need. It’s not merely a matter of dirty campaign tactics. It’s a matter of an impending fraud on voters.
A sitting judge of the Los Angeles Superior Court could not have his or her name appear on the ballot preceded by the title “Judge”—which, where that incumbent was being challenged, could be a meaningful advantage. Yet Cummins, through a sly maneuver in gaining a name change that clearly should have been blocked, has, at present, that undeserved advantage over his competitor.
If Cummins is not stopped, think about the consequence beyond the current election. Surely it would embolden some future challenger to an incumbent (perhaps many) to obtain a name change and, with the first name—and apparent title—of “Judge, “Mayor,” “Councilmember,” “Supervisor,” or whatever appearing before his or her name on the ballot, create an illusion of being in office. Such a schemer might well trounce the actual office-holder, possibly a worthy one, whose title would be in smaller print below the name.
The facts cry out for judicial action to prevent a devious individual from gaining membership on the Los Angeles Superior Court through artifice, through hoodwinking.
The name of Ralph Adam Fine is probably unknown to you, unless you’re from Wisconsin. He gained prominence there as a jurist, dying in 2014 while a member of the state Court of Appeals.
The Elections Board in The Badger State found that a statute precluded the use both of Fine’s full first name and middle name in his 1978 contest for a judgeship on the Milwaukee County Circuit Court. A judge of that court reversed the order and the board appealed; the Court of Appeals of Wisconsin affirmed on Aug. 9, 1979, saying in an unpublished opinion:
“The purpose of the Wisconsin election laws is to ‘give effect to the will of the electors....’…The Elections Board is vested with the responsibility for administering the election laws….In effect, the Elections Board has the duty, pursuant to its powers, to insure that the will of the electors is given effect.
“The Elections Board has the inherent power to prevent either voter confusion at the polls, or harm to a candidate, resulting from any particular designation of a candidate’s name on a ballot.”
The opinion continues:
“The Elections Board and the Wisconsin Attorney General, by opinion, recognized this inherent power, when President Carter’s name was placed on the ballot in Wisconsin as ‘Jimmy Carter.’ ”
It acknowledges that a statute expressly prohibited use of nicknames, but quotes the attorney general’s March 4, 1976 opinion relating to use of the name “Jimmy Carter” as saying:
“I take note of the fact that Jimmy Carter is known by that name and is not generally known, at least in Wisconsin, by the name given to him at birth, James E. Carter. Presumably, many voters will wish to vote either for Jimmy Carter or not vote for him. Utilization of the name ‘James E. Carter’ could very well confuse a number of voters in either category.”
The Court of Appeals’s opinion declares:
“It is fundamental, that since free and informed elections are the cornerstone of this democratic state and nation, a court, in interpreting election laws, should never allow form to take precedence over substance. Similarly, neither should the Elections Board….[W]e hold that the opinion of the Elections Board was partially incorrect, because it did not note that the Elections Board has the inherent power to modify the strict terms of the statute in cases of possible voter confusion, as it in effect did by allowing President Carter to use ‘Jimmy Carter’ on the ballot in Wisconsin. Therefore, the Elections Board foreclosed Fine the opportunity to present any mitigating circumstances why his name should be placed in full on the ballot.”
It ordered that the Elections Board, in the future, consider these nonexclusive factors:
“1. Has the candidate shown that he would be harmed by an inability to use the desired name?
“2. Will the electorate be confused by the candidate’s inability to use the desired name?
“3. Is the candidate promoting the use of a non-conforming name in good faith?”
That opinion, it is true, was unpublished. However California Rules of Court, rule 8.1115 only bars citation to unpublished California Court of Appeal and Appellate Division opinions. As Div. Four of this district’s Court of Appeal noted in an opinion last year, in University of Southern California v. Superior Court, “We are free to cite both published and unpublished decisions from other jurisdictions and rely on them as persuasive authority.”
And the Wisconsin Court of Appeals’s 1979 decision in Fine v. Elections Board is, I submit, highly persuasive.
Although the issue in that case was whether a name that was statutorily nonconforming could appear on the ballot, the underlying reasoning is that there is an inherent power to shield the electorate from confusion. It would make sense to apply that reasoning here.
While the Wisconsin Supreme Court granted review in Fine—rendering its own opinion on March 3, 1980—it did not reject the Court of Appeals’s discussion of inherent powers. What it rejected was the view of the trial court and the appeals court that the statute unambiguously barred the use of two full names. An interpretation of that Wisconsin statute is not of pertinence to a consideration of Cummins’s ploy; whether the intermediate appellate court’s reasoning should be adopted is.
Could Cummins show he would be harmed if he could not use the first name of “Judge”? Of course he could. He would get far fewer votes.
Could Cole, as the petitioner, show harm if the word “Judge” is not disallowed? Sure. She would get far fewer votes.
The first question posed in Fine simply does not fit here. The real issue is not harm to the candidates, but to voters.
It’s the second question—whether voters would confused—that is pertinent, and is the overriding concern.
Can it possibly be doubted that there would be confusion?
As to the third factor, good faith on Cummins’s part can hardly be assumed. He underwent a name change in 2017 in anticipation of running for the post of state insurance commissioner. His evident purpose was to create the impression he was a judge—when he no longer was.
The equities do not weigh in his favor.
“Judge Mike Cummins” with the modifier “Retired” appearing below the name is less misleading than his running—as he did last year in San Luis Obispo County, for district attorney—as “Judge Mike Cummins,” without anything beneath the name. Plainly. he represented that he presently held a judgeship.
But what is slated to appear on the March 3 ballot in Los Angeles County connotes is that he’s a retired judge—and while that is true, he more recently retired as an attorney. Cummins says in an email:
“I practiced law in San Luis Obispo and northern Santa Barbara Counties between late 2006 and January 2017.”
He relates in another email:
“[S]ince January, 2017, I have been completely retired from any and all gainful employment….”
Sec. 20716(h)(4) of the Code of Regulations 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.”
Accordingly, if Cummins is to have any ballot designation (it’s not required), it should be: “Retired Attorney.”
The word “Retired,” standing alone, is inappropriate because what is contemplated by the election laws is that word be used be used adjectively. Elections Code §13107 says “retired” may not be used if it is placed “following any word or words which it modifies.” This indicates that it must be used as a modifier. The relevant Code of Regulations provision is to the same effect.
If the ballot designation were “Retired Attorney,” would that remove the deceptiveness of including, on the line above, the name (an apparent title) of “Judge”? No.
It would convey that the candidate used to be an attorney and is now a sitting judge.
To remove confusion—actually, deception—use of the word “Judge” should be barred. An order to that effect would be unusual if not extraordinary, but so is Cummins’s deceptive antic.
This would not be a collateral attack on Labarbera’s long-final order granting the name-change; Cummins’s first-name would still be “Judge.” He would simply be prohibited from using that name, in full, in an election for a judgeship where doing so would run contrary to the aims of election laws in guarding against voter bamboozlement.
In filling out an attachment to his change-of-name petition, Cummins was obliged to state the “Reason for name change.” It’s a sure-bet he did not write: “To enhance my chances in elections by creating the false impression that I hold judicial office.” Given that name changes are precluded when the purpose is to create fraud or confusion, there would be no unfairness to Cummins to disallow the full use of his first name where it would advance just such an objective.
So, what ought to appear on the ballot is something along the lines of:
J. MIKE CUMMINS
POST SCRIPT: The Wisconsin Court of Appeals’s decision in the Fine case came after Fine was elected in 1978 to the Milwaukee County Circuit Court. His full name appeared on the ballot, in accordance with the trial judge’s decision.
The appeal was decided post-election, the opinion says, “for the benefit of future candidates for non-partisan elections, and for the benefit of the Elections Board, even though the question is admittedly moot for the purposes of the last judicial election.”
But how could the opinion be of future benefit if it was unpublished? Wisconsin has a system that differs from ours. The main opinion and a short concurring opinion in the case were “recommended” by the panel for publication. However, a committee there makes the call.
A rule in that state says that “an unpublished opinion issued on or after July 1, 2009, that is authored by a member of a three-judge panel or by a single judge…may be cited for its persuasive value.”
While the procedure for certifying opinions by committee does not appear to have an advantage over the system here, the permissibility of citing unpublished opinions for their persuasive value does have an attraction, which is hardly an original observation.
As has been noted over the years, it’s anomalous that out-of-state and federal opinions, published or not, may be cited here for that limited purpose, but not California Court of Appeal or Appellate Division opinions.
I once told then-Court of Appeal Presiding Justice Joan Dempsey Klein, at a cocktail reception, that I had just filed a memorandum of points and authorities containing several paragraphs that were brilliant—which sounded fat-headed until I explained that I had lifted them from one of her unpublished opinions.
It’s odd. Plagiarizing opinions that are not certified for publication is acceptable. (They’re in public domain and potentially contain useful discussions.) But crediting the source, which would be the honest thing to do, is not allowed.
Copyright 2019, Metropolitan News Company