By Roger M. Grace
Pete Murray is a civil practitioner. Since Feb. 1, according to his Facebook page, he’s been chief trial counsel for Cage & Miles, LLP. That’s a San Diego firm specializing in family law cases.
Murray is a candidate for the San Diego Superior Court. As noted here yesterday, his ballot designation is “Attorney/Criminal Prosecutor.”
That was permitted by San Diego Registrar of Voters Cynthia L. Paes notwithstanding that—as is obvious—family law attorneys do not engage in criminal prosecutions.
Elections Code §13107 provides in Subd. (e):
“The Secretary of State and any other elections official shall not accept a designation of which any of the following would be true: [¶] (1) It would mislead the voter.”
If voters are told that a candidate is a “Criminal Prosecutor” and the candidate isn’t, they surely are being “misled”—or, putting it differently, are lied to.
There’s a provision of the Code of Regulations that is designed to carry out the anti-deception mandate. But it’s the view of Paes and San Diego County Counsel Claudia G. Silva that the regulation applies only to candidates for nonjudicial offices.
Peter Singer, a commissioner of the San Diego Superior Court, is Murray’s rival in the Nov. 8 election for an open seat on the court. On Aug. 1, Singer emailed his opponent, expressing the view that his ballot designation in the primary—“Criminal Trial Prosecutor”—was “improper and in violation of the applicable elections law.” Murray responded the following day by submitting to the Registrar’s Office a new designation, the one he now has. (He also offered two alternatives,)
Paes spurned Singer’s request to bar use of the words “Criminal Prosecutor,” and the commissioner sought a writ of mandate. Given that Singer is a member of the bench in San Diego, the case was shifted to Orange County.
Skipping ahead to the outcome: the merits weren’t reached. Judge Nathan R. Scott on Sept. 1 denied the petition as untimely.
Murray said in his opposition, which he drafted:
“Petitioner is…attempting to remake statutory language to meet his bidding. When he couldn’t convince the Registrar of Voters to do so, he now comes to this Court asking it to do so. And…this Court is not the Legislature. The Court applies the laws AS IT EXISTS. In so doing, the Court cannot help but agree that the Registrar was correct in her decision; and hoping for a finding that she was wrong by clear and convincing evidence is simply a fool’s wish.”
The lawyer remarked that it “is abundantly clear why” Murray is “afraid” of the ballot designation he’s contesting, suggesting that “perhaps he should focus on trying to distinguish himself from a career Criminal Prosecutor as he has done repeatedly throughout the Primary…, rather than now try to hide from the electorate an unequivocal factual truth.”
I have difficulty grasping how it is “an unequivocal factual truth” that a person who handles family law cases is a “Criminal Prosecutor.”
The writ petition, prepared by Torrance attorney Aimee R. Morris, points to a section of the California Code of Regulations (“CCR”). The lawyer says that “2 CCR 20714(d) is specific to the instant scenario.” That regulation, among a batch of elaborations on Elections Code provisions drafted by the Office of Secretary of State, provides:
“If the candidate is engaged in a profession, vocation or occupation at the time he or she files his or her nomination documents, the candidate’s proposed ballot designation is entitled to consist of the candidate’s current principal professions, vocations and occupations. In the event the candidate does not have a current principal profession, vocation or occupation at the time he or she files his or her nomination documents, the candidate may use a ballot designation consisting of his or her principal professions, vocations or occupations, which the candidate was principally engaged in during the calendar year immediately preceding the filing of the candidate’s nomination papers.”
Provisions of the Code of Regulations have the force of law. If the one invoked by Singer is applicable, Murray’s ballot designation is infirm because he does have a current profession and occupation, and can’t use a former one.
However, Paes insisted that it doesn’t apply. Her response to the petition, prepared by Senior Deputy County Counsel Michael P. Masterson, says that §20714(d) “expressly applies to ‘ballot designations submitted pursuant to Elections Code § 13107, subdivision (a)(3),’ which applies to non-judicial offices.”
The response continues:
“Ballot designations for judicial offices are not governed by Elections Code section 13107(a)(3); they are governed by Section 13107 subdivisions (b) and (c).”
“Upon review of these provisions,” the response declares, “the Registrar determined that the designation did not violate 2 CCR § 20714(d).”
That conclusion, though logical on its face, is flawed.
The point that was missed is that prior to Jan. 1, 2018—the effective date of Senate Bill 235, amending Elections Code §13107—there were no separate provisions for Superior Court candidates. Sec. 13107(a)(3) applied to all candidates for any office other than justices of the California Supreme Court, the courts of appeal, and elected city, county, district, state, or federal officials.
Since Jan. 1, 2018, the Secretary of State’s Office has not updated §20714 (which went into effect on Jan. 14, 1998) to reflect the amendments created by SB 235.
Sec. 13107(a)(3)—to which §20714(d) expressly applies—provided before Jan. 1, 2018, as it provides now, that ballot designations may be comprised of “[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 precise language or nearly identical language has been incorporated in three places in the new provisions in §13107 relating solely to judicial elections. There is no conceivable reason why a regulation aimed at avoiding the misleading of voters that previously applied to judicial candidates should not continue to be applied to them, simply because the Secretary of State’s Office has not gotten around to promulgating updates.
There is nothing in the legislative history of SB 235 indicating an intent that the Secretary of State’s Office’s amplification on what is permissible wording in ballot designations would not be carried over to the new provisions.
It would be senseless to fail to apply §20714 to those provisions given that the manifest objective of the regulation is to effectuate the command of §13107(e)(1) that election officials disallow ballot designations that “would mislead the voter.” The prohibition on misleading designations applies with equal force to judicial and nonjudicial elections.
The only rational basis for allowing reference to a past undertaking, consistent with not being misleading, is where the candidate is out of work—fired, laid-off, locked-out, on a sabbatical, or whatever—and there is no indication that the role has been abandoned, as by taking on employment of a different nature. If a candidate had been a teacher and is running for a school board but is now a performer in porn movies, a designation as an “educator” would delude voters. Sec. 20714 is intended to avoid such flimflamming—against which there is no reason to guard only in nonjudicial races.
To allow Murray’s name to appear on the ballot as a “Criminal Prosecutor,” a falsehood, contravenes §20714(d), a regulation which, logically, still adheres to judicial candidates, as it has since 1998, after those candidates have been relocated to new housing in the same Elections Code section.
Randolph M. Hammock, a judge of the Los Angeles Superior Court, was a champion of SB 235. He would take an approach different from that put forth by Singer in his writ petition.
“In my opinion it really doesn’t matter” whether §20714(d) applies or not, he says. The San Diego registrar of voters “is correct in one fundamental way,” he comments, noting that Elections Code §13107, subds. (b) and (c), “now govern elections for Superior Court judge.”
Hammock notes that Murray “doesn’t qualify to designate under (b)(2)”—which applies to government lawyers—“since he is not currently ‘employed’ by a public entity,” adding:
“He clearly must designate under subsection (c), as he is an active member of State Bar and he currently ‘practices law’ as one of his professions.”
That subsection provides:
“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, or the principal profession, vocation, or occupation of the candidate during the calendar year immediately preceding the filing of nomination documents.”
Hammock says of Murray:
“Thus he may use any of the four designations OR he can use ‘Attorney’ or “Lawyer” 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.”
The judge continues:
“The key word is ‘other.’ This means that the other ‘profession, vocation, or occupation’ must involve something OTHER than being an attorney/lawyer. A prosecutor is a lawyer/attorney.
“The problem, if any, is the word ‘other’ doesn’t repeat itself after the word ‘or’ in the latter part of this subdivision. Does ‘other’ apply to both parts? I say YES. If it doesn’t then this entire subdivision becomes meaningless.”
He explains that then, every lawyer who was a prosecutor in the previous calendar year “but now is in private practice (such as Mr. Murray),” could, under subdivision (c), use a designation of “Lawyer/Gang Prosecutor, etc.”
Hammock points out that “[t]he intent of the new law was to prevent such misleading designations.”
Indeed, the major impetus for SB 235, carried by Sen. Ben Allen, D-Los Angeles, was the inventiveness of deputy district attorneys—primarily in this county—in fashioning such emotion-evoking designations as “Child Molestation Prosecutor” or “Gang Homicide Prosecutor.” In stating the purpose of the bill, Allen cited research by Hammock showing that between 2006 and 2016, 41 deputies in this county ran for the Superior Court and only one, in 2006, used “the straightforward ballot designation of ‘Deputy District Attorney’,” the other 40 adopting glorified descriptions.
“Permitting exaggerated and misleading designations on official ballot materials does a disservice to the public. Unfortunately, candidates who use such language have proven effective in winning elections.”
Hammock approach would avoid end-runs around SB 235.
That’s not to say that Singer is an ideal candidate for a judgeship. He’s not; he’s a finagler. His candidate statement proclaims:
“Experience—29 years on the bench, first as a temporary courtroom Judge, now Court Commissioner.”
A voter is not apt to understand that he was, for 22 years, simply an attorney who occasionally hopped on the bench as a volunteer pro tem handling minor matters.
Too, if Singer had acted with alacrity in challenging Murray’s bogus ballot designation in the primary, he might have obtained a writ and, if he didn’t, Div. One of the Fourth District Court of Appeal could have granted relief—as the Fourth District’s Div. Two did with respect to an improper designation chosen by a Riverside Superior Court candidate.
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