Thursday, August 29, 2002
C.A. Slates Sept. 10 Hearing on Bacigalupo Ballot Designation
By a MetNews Staff Writer
The Court of Appeal for this district has scheduled a hearing Sept. 10 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 court’s Div. Three issued an order to show cause Tuesday, one week after a supporter of Bacigalupo’s opponent, Deputy District Attorney David Gelfound, filed his petition for a writ of mandate.
Deputy District Attorney Jared Moses 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.
The appeals court slated the Sept. 10 hearing for 3 p.m. in its courtroom at the Ronald Reagan Building in downtown Los Angeles. It gave the parties until Tuesday of next week to submit letter briefs, to which responses may be filed no later than next Friday.
The court specifically asked the parties to address the issue of “why the proper ballot designation should not be ‘State Bar Judge’ rather than ‘Judge, State Bar.’ ” And it asked the petitioner to specify the “absolute” deadline for printing the ballots.
Moses’ attorney, Mark Geragos, said in his petition that the ballots were to go to the printer Sept. 14.
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 suggested several alternative designations, including the one focused on by the court in the OSC.
Bacigalupo’s attorney, Bradley W. Hertz, told the MetNews he believes 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.
Perhaps anticipating Hertz’s argument, Geragos contended in the petition 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.
But Hertz said 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 Aug. 19.
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