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Perspectives (Column)
Elections Code Section on Ballot Designations Does Apply in Orange, San Diego Counties
By Roger M. Grace
Legislation went into effect on Jan. 1, 2018, reforming ballot designation requirements for judicial elections.
“Election Code section 13107, as recently amended in 2017, does actually apply within the Counties of San Diego and Orange, as they are part of the State of California,” Los Angeles Superior Court Judge Randolph M. Hammock advises.
Well, um, yes; statewide legislation would apply to all counties unless expressly exempted. Why in the world would Hammock see the need to point out that changes to §13107 apply to those two specific counties?
For a good reason. Election officials in those two counties appear oblivious to the requirements of the statute.
And one candidate—Pete Murray—will be listed on the Nov. 8 ballot in San Diego as “Attorney/Criminal Prosecutor” in contravention of §13107 as well as a provision of the Code of Regulations. An attorney he is; a criminal prosecutor he is not.
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I corresponded with Hammock by email after Div. Two of the Fourth District Court of Appeal held on Aug. 26 in Spencer v. Superior Court that a candidate for the Riverside Superior Court, Amy Barajas, may not be identified on the ballot as “Senior Deputy District Attorney.” That designation was authorized by Judge Daniel A. Ottolia in a writ proceeding notwithstanding that it violates §13107, as revised, as well as breaching a preexisting portion of the statute, in addition to running afoul of the Code of Regulations.
Hammock was a vocal proponent in 2017 of Senate Bill 235 which amended §13107. That bill was based on a proposed bill drafted by my wife, Jo-Ann W. Grace, while she was chair of the Los Angeles County Bar Association’s delegation to the Conference of California Bar Associations. The CCBA approved her proposal, without opposition, at its annual conference, and it located a senator, Ben Allen, D-Los Angeles, to introduce it.
At his own expense and using a vacation day, Hammock went to Sacramento to testify in favor of SB 235. (Also testifying for it were Los Angeles Superior Court Judge Daniel J. Lowenthal and attorney Aaron J. Weissman.)
It apparently rankles Hammock when election officials simply ignore the statutory commands as to ballot designations in judicial elections. That happened in Orange and San Diego counties.
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The judge shared with me his notes from the primary.
He had jotted down that in Orange County, Fred Fascenello was listed on the ballot as “Trial Attorney,” Jessica Cha was described as “Family Court Attorney,” and that under the name of Brahim Baytieh were the words “Deputy District Attorney” without the county being designated.
In San Diego County, civil practitioner Pete Murray had the ballot designation of “Criminal Trial Prosecutor” (which he has slightly altered for the run-off) and Mike Murphy was billed as “Deputy Attorney General” without a reference to the state.
Fascenello, Cha, and Baytieh did not make it into run-offs; Murray and Murphy did, and are in separate contests.
Two problems with the designations emerge: forbidden use of generic descriptions and the failure to indicate where it is that the government lawyers are employed.
The five ballot designations pinpointed by Hammock were contrary to what the law requires—but not what Orange County Registrar of Voters Bob Page or San Diego Registrar of Voters Cynthia L. Paes are willing to accept.
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“[T]he designations of ‘Criminal Trial Prosecutor,’ ‘Trial Attorney,’ and ‘Family Court Attorney’ appear to be wholly improper,” Hammock declares.
He notes that those descriptions would be permissible only under a narrow circumstance, one that does not appear to apply to Fascenello, Cha, or Murray—namely Subd. (b)(1)(C) of §13105. It permits “[n]o more than three words designating either the current principal professions, vocations, or occupations of the candidate, or the principal professions, vocations, or occupations of the candidate during the calendar year immediately preceding the filing of nomination documents.”
That provision, created by SB 235, is applicable only to judicial candidates. It mirrors the standard in §13107 that was previously applicable to all candidates, and which remains applicable in all non-judicial races.
However, §13107, as amended, provides that Subd. (b)(1)(C) may only be invoked by a judicial candidate who is not “an active member of the State Bar” who “practices law as one of his or her principal professions”—which includes Fascenello, Cha, and Murray (or “an active member of the State Bar employed by a city, county, district, state, or by the United States.”)
Accordingly, a generic description of a judicial candidate’s activities may be used by an inactive member of the State Bar or by an active member who doesn’t practice, at all, or not as a “principal” pursuit. Fascenello, Cha, and Murray were not on inactive bar status and certainly did not portray themselves in their campaigns as being only dabblers in the practice of law.
Subd. (b)(1)(C) might well be regarded as a loophole in §13107, created in the course of the legislative process, retaining, unwisely, an authorization for the sort of emotion-grabbing designations—such as “Child Molestation Prosecutor”—that SB 235 was intended to bar. But, Hammock notes:
“[T]he vast majority of judicial candidates (if not all) in any given election, do not qualify to designate under that subsection.”
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What law does apply to Fascenello, Cha, and Murray?
The sole allowable designation under §13107 for non-government lawyers on active bar status who practice law for a living—such as these three contenders—are “Attorney,” “Attorney at Law,” “Lawyer,” or “Counselor at Law”…subject to one proviso:
“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.”
Those were the only choices Fascenello, Cha, and Murray had, in conformity with statute.
There’s good reason that such designations as “Trial Attorney” and “Family Court Attorney,” are now disallowed, though subject to the narrow circumstance alluded to by Hammock. It’s difficult to verify, for example, how often an attorney appears in court or in trials and how much of an attorney’s practice is devoted to cases in a particular area of the law. There was considerable fudging prior to the amendments to §13107 when generic descriptions were allowed.
Murray could not, lawfully, have used “Criminal Prosecutor” as his designation even if he were still an assistant U.S. attorney, which he isn’t. The fact that he is no longer a prosecutor renders his ballot designation in the primary, as well as the one for the general election, contrary to statute for various reasons, to be discussed in the next column.
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Under the revamped statute, a government lawyer (or an official) for a city, a county, or (with respect to San Francisco) a city/county, must include a geographical reference.
The purpose of that is to prevent circumstances such as a prosecutor from Lassen County coming to Los Angeles County and running as a “Deputy District Attorney”—with voters assuming, in the absence of the words “Lassen County,” that the candidate is from here and knows where the courthouses are and is acquainted with local rules, customs, and who is who. Or, without the requirement, the Long Beach city prosecutor or the Redondo Beach city prosecutor could run for the Los Angeles Superior Court as “City Prosecutor” and be assumed by some less astute voters to be the Los Angeles city attorney.
Page was remiss in allowing Baytieh to run as “Deputy District Attorney” without including “County of Orange” before or after the job title. No harm, but there was a foul; the statute was not followed.
Paes was negligent to a greater extent in permitting Murphy to be listed as “Deputy Attorney General” without mentioning “California,” conceivably leading to confusion. A voter might think he’s a federal deputy A.G.—that is, an assistant U.S. attorney. That’s potentially detrimental to his opponent in the November run-off, Rebecca Kanter, who is, legitimately, designated “Assistant U.S. Attorney.” I don’t know whether a federal prosecutor has an election advantage over a state prosecutor, but voters are entitled, under the statute, to be made aware that the two candidates are not, as they might seem to be, in the same office.
None of this applies to incumbents or to other members of the State Bar who are not on active status. They come under other provisions of the statute. And any candidate has the prerogative of opting (unwisely in most any instance) for no designation.
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Hammock comments, with respect to compliance with §13107, that he “would expect that candidates for judge would carefully read and comply with that statute in submitting their ballot designation,” adding that “the registrars of each of California’s 58 counties have an affirmative duty to enforce” the election laws relating to ballot designations.
It’s clear that some candidates have either not familiarized themselves with the legal requirements or are simply hopeful that their deviations will not be detected.
Barajas, in Riverside, was utterly pig-headed. Spencer’s office pointed out to her why her proposed designation of “Senior Deputy District Attorney” is infirm. “Senior” is not part of the actual job title, authorized under SB 235 along with one alternative Barajas did not invoke, and use of the word runs afoul of pre-SB 235 language in §13107 barring a designation that “suggest an evaluation of a candidate, such as outstanding, leading, expert, virtuous, or eminent” and 2 Code of Regulations §20176(e) which elaborates that “impermissible adjectives include, but are not limited to, ‘senior’.” Also, Barajas did not include the words, “County of Riverside,” as mandated by SB 235.
Notwithstanding the clarity of the rules, the headstrong candidate brought a writ proceeding in the Riverside Superior Court and was able to convince the buddled Ottolia to permit her chosen designation, thus putting the county to the expense of obtaining a writ of mandate from the Court of Appeal.
And Murray seeks to defend the indefensible: the lie that he is a “criminal prosecutor.”
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Page in Orange County and Paes in San Diego County were asleep at the switch. Riverside’s registrar of voters, Rebecca Spencer, by contrast, was attentive to her duties, having sought the writ in the Court of Appeal that nullified the cockeyed ruling by a judge of her county’s Superior Court, Ottolia.
In Los Angeles, we have Registrar-Recorder Dean Logan whose his tenure has been marked repeatedly by infirm calls as to ballot designations (and apparent dereliction in connection with the recent counting of signatures on petitions calling for an election posing the question of whether District Attorney George Gascón should be recalled).
Hammock expresses his hope that judicial candidates familiarize themselves with election-law requirements as to ballot designations and that registrars of voters enforce the strictures. It might be added that judges should be expected to rule in conformity with legislative edicts in this area.
Ottolia might well have effectively rigged an election in Riverside County, albeit (presumably) unwittingly, owing to his dunderheaded failure to look at the law, and apply it. Deputy District Attorney Natalie Lough fell short of attaining victory in the primary by only two-tenth of one percent of the vote in a three-person race and it’s a good guess that she would have won the contest had Barajas not been identified on the ballot as “Senior Deputy District Attorney”—which was not her actual title—while Lough, with a lawful ballot designation, did not have the advantage of the word “Senior.”
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