Wednesday, September 11, 2002
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Ruling Expected Today on Bacigalupo Ballot Designation
By KENNETH OFGANG, Staff Writer
A panel of Div. Three of this district’s Court of Appeal is expected to rule today on whether State Bar Court Judge and Los Angeles Superior Court candidate Paul Bacigalupo can call himself “Judge, State Bar” on the Nov. 5 ballot.
The panel heard argument yesterday, two weeks after issuing an order to show cause why a writ of mandate forcing Bacigalupo to change his ballot designation should not be issued.
With the deadline for sending the ballot to the printer looming, the panel’s senior member, Justice Walter Croskey, said a decision would likely be filed by this afternoon.
The designation is being challenged by a supporter of Bacigalupo’s opponent, Deputy District Attorney David Gelfound. Petitioner Jared Moses, also a deputy district attorney, claims that the designation would mislead voters into believing that Bacigalupo was already a Superior Court judge.
Bacigalupo ran with that listing in the primary after a Los Angeles Superior Court judge rejected a petition by Moses raising the same issue.
Moses’ attorney, Mark Geragos, argued yesterday that the phrase should be reworked to read “State Bar Judge,” thus making clearer the fact that Bacigalupo is an administrative factfinder rather than an adjudicator.
But Geragos ran into skeptical questioning from Croskey and, especially, from Justice Richard Aldrich, who emphasized the statutory requirement that a ballot designation challenge be supported by “clear and convincing proof.”
He asked Geragos if his assertion that voters would likely see the designation and think Bacigalupo was already a judge was “merely a matter of opinion.”
No, Geragos replied, citing Luke v. Superior Court (1988) 199 Cal.App.3d 1360. The court held there that it would be misleading to list a court commissioner as “Judge, Los Angeles County (Acting).”
But Aldrich said there was a distinction between the cases, because the commissioner in that case, Jewell Jones, was not entitled by statute to call herself “Judge,” whereas Bacigalupo may do so under the State Bar Act.
If the term “Judge” doesn’t accurately describe what Bacigalupo does, the justice asked, “shouldn’t that be taken up by the Legislature?”
Geragos vigorously took issue. “The courts are supposed to be the guardians of an informed electorate,” he told the panel.
Croskey, also citing Luke, acknowledged that “State Bar Judge” is a clearer description than “Judge, State Bar,” but questioned whether that would be sufficient to support a finding that the candidate’s preferred designation is misleading.
“Aren’t you just asking us to substitute our judgment for that of the registrar of voters and the secretary of state?,” he asked. But Geragos argued that the registrar failed to exercise discretion, noting that she prohibited Workers’ Compensation Judge John Gutierrez, a candidate in another judicial contest, from changing his designation from “Administrative Law Judge” to “Judge, Administrative Law.”
In the absence of findings, Geragos argued, the registrar’s decision is entitled to little deference.
Bacigalupo’s lawyer, Bradley W. Hertz, had a somewhat easier time, although Croskey questioned his client’s motivations.
“His decision to do this strikes me as calculated,” the justice commented. If someone came up to the candidate at a cocktail party and asked what he did, wouldn’t he most likely say he was a “state bar judge,” the jurist asked.
“He probably wouldn’t use the comma,” Hertz acknowledged. But there was no proof, let alone clear and convincing proof, that anyone would be misled by the chosen designation, he insisted.
Copyright 2002, Metropolitan News Company