Thursday, August 22, 2002
Writ Sought Against Bacigalupo Ballot Designation
By a MetNews Staff Writer
A supporter of Deputy District Attorney David Gelfound’s campaign for the Superior Court has petitioned the Court of Appeal for a writ of mandate that would bar Gelfound’s runoff opponent, State Bar Court Judge Paul Bacigalupo, from being listed as “Judge, State Bar” on the Nov. 5 ballot.
Bacigalupo ran with that listing in the primary after a Los Angeles Superior Court judge rejected a petition by the same petitioner raising the same issue. Deputy District Attorney Jared Moses claims that the designation would mislead voters into believing that Bacigalupo was already a Superior Court judge.
Moses appealed that ruling, but the issue became academic as to the primary, since the appeal is still pending. In his latest petition, filed Tuesday, Moses’ attorney, Mark Geragos, argues that writ relief is necessary because the issue would otherwise not be resolved before the ballots go to the printer Sept. 14.
Unless the petition is successful, six of the eight candidates in the Nov. 5 election will have the same ballot designations they had in the primary.
The changes are in the contest for Office No. 39. The incumbent, Judge Richard Spann, is not running for reelection.
One of the candidates in that race, Richard Naranjo, will be listed as “Criminal Prosecutor” instead of “Deputy District Attorney,” while fellow deputy Craig Renetzky is now a “Prosecutor/Law Professor” rather than a “Criminal Prosecutor.”
Renetzky was not available for comment, but his campaign consultant, Fred Huebscher, said the candidate is teaching law-related courses at Los Angeles Valley College, which is part of the Los Angeles Community College District.
Naranjo said he would ask the registrar-recorder to review the validity of the designation, although it may be too late to make any change.
Bacigalupo and Gelfound are running for Office No. 67, the seat last held by Judge David Finkel, who retired earlier this year.
In their writ petition, Moses and Geragos claim the designation is misleading because it will confuse voters into believing that Bacigalupo is an incumbent Superior Court judge rather than a hearing judge for an administrative agency.
“Bacigalupo’s role as a hearing judge for the State Bar Court is to hear and make recommendations to the Supreme Court concerning attorney disciplinary cases,” they say in the petition. “His role is not to function as a ‘judge’ in the sense the general electorate will assume.”
Placing the word “judge” at the front of the designation, with the last two words set off by a comma, exacerbates the tendency to mislead, according to the petition, which suggests that “Bar Hearing Judge,” “Attorney Hearing Judge,” “Administrative Hearing Judge,” “Disciplinary Hearing Judge” or “State Bar Judge” be employed instead.
Bacigalupo’s attorney, Bradley W. Hertz, said the petition was untimely. Moses could have sought an expedited hearing in the Court of Appeal on the issue anytime after Judge David Yaffe ruled in January that the designation was not misleading.
Instead, Hertz noted, they brought a standard appeal, in which the record was not filed with the appellate court until this past Monday.
Perhaps anticipating Hertz’s argument, Geragos contended that the issue was not ripe for a writ petition earlier because Bacigalupo could have changed the designation up until July 30. He further argued that the request for writ relief with respect to the general election is independent of the proceeding with respect to the primary.
Hertz told the MetNews, however, that even if those arguments are accepted, the court should still find the petition untimely. Since the candidates’ designations appear in the sample ballot pamphlet, he said, a challenge must be filed no later than the 10-day period for seeking injunctive or mandate relief with respect to material appearing in the pamphlet.
That period ended Monday.
Hertz also predicted that Bacigalupo would win on the merits if the court reaches them. “We continue to believe the designation is accurate and permitted” by the Elections Code, he said.
Yaffe said the designation was permissible under Andrews v. Valdez,(1995) 40 Cal.App.4th 492.
That decision allowed Deborah Andrews, now a Los Angeles Superior Court judge but then an administrative law judge hearing unemployment compensation appeals, to be listed as “Administrative Law Judge.” The then-registrar had objected to the title, based on an earlier ruling barring a court commissioner from being listed as “Judge, Los Angeles County (Acting).”
The distinction, the Court of Appeal held, was that Andrews was using a title conferred by statute.
Yaffe cited Business and Professions Code Sec. 6079.1, a State Bar Act section referring to “[a]ny judge appointed under this section.”
Yaffe quipped that as “a real judge,” he had sympathy for the petitioner’s position. But if the Legislature chooses to call “these administrative officials” judges, Yaffe said, they can use the term on the ballot.
“The Legislature keeps debasing the coinage,” he commented.
Copyright 2002, Metropolitan News Company