Thursday, February 21, 2002
Page 9
PERSPECTIVES (Column)
Administrative Law Judge vs. Prosecutor: Whose Ballot Designation Is Mightier?
By ROGER M. GRACE
In casting ballots in two judicial races on the March 5 ballot, the electorate will make known whether it’s impressed more by the title of “Administration Law Judge” or by a ballot designation indicating that the candidate is a prosecutor.
A proposition which would evoke little dissent is that most voters don’t know a thing about the candidates for judgeships. So, for the most part, they make selections based on the office-seekers’ job descriptions appearing beneath their names on the ballot.
If the candidate is an incumbent, victory is virtually assured—just so the candidate uses the word “judge” and not “incumbent.” Los Angeles Superior Court Judge Roberta Ralph was defeated at the polls in 1988, with her loss generally attributed to her designation as “incumbent.”
If there is no “judge” in a race, a deputy district attorney will have an edge over private practitioners and commissioners.
The question is whether an “Administrative Law Judge” will be perceived by voters as a “judge” of a trial court—perhaps even as the incumbent—lending the candidate an advantage over a prosecutor. Or are voters more savvy than that?
These questions loom in the races for Los Angeles Superior Court Office No. 2 (sought by Donald Renetzky, Administrative Law Judge; Joseph “Joe” Deering, Eldercare Attorney; and Hank Goldberg, Criminal Prosecutor) and Office No. 100 (staked out by Thomas H. Warden, Trial Attorney; Richard F. Walmark, Criminal Trial Prosecutor; and John C. Gutierrez, Administrative Law Judge).
If Renetzky and Gutierrez both prevail (whether in March or November), there will be no explanation other than the potency of the designation “Administrative Law Judge.” Neither is spending much money.
Assuming that merit has something to do with the outcome of judicial races (and it seldom does), neither would win on that basis. Both candidates, who are workers compensation judges, have failed to keep abreast of developments in California law outside of their narrow fields. Each was charitably rated “qualified” by the Los Angeles County Bar Assn., while their respective rivals in the District Attorney’s Office were deemed “well qualified.”
If Goldberg and Walmark both triumph at the polls, it will, of course, be an indicator of the political value of a designation as a prosecutor. Both of those candidates do have something going for them other than their titles, however. Each has an endorsement by the Los Angeles Times, and Goldberg has name recognition based on his participation in the prosecution of O.J. Simpson. While a win for the ALJs would be attributable solely to the ballot designations, a victory for the prosecutors would be fairly attributable to more than one factor.
Now, if Renetzky wins and Gutierrez doesn’t, it will be a huge boon to the reputation of Fred Heubscher, a 42-year-old political consultant who has drawn clients largely based on some recent successes and on a cut-rate price for handling judicial campaigns ($3,000). Heubscher is representing ALJ Renetzky in the race for Office No. 2, and Deputy District Attorney Walmark in the contest for Office No. 100.
On the other hand, if Gutierrez prevails and Renetzky sinks, Heubscher’s stock will plummet.
With respect to the race for Office 100, the odds are high that the winner will be either Gutierrez or Walmark. Warden’s ballot designation as “Trial Attorney” is no match for the job titles used by his rivals. For Warden to win would take a lot of spending—which does not appear to be in the offing.
However, Deering, the private practitioner seeking Office No. 2, could conceivably trounce the ALJ and the prosecutor. He has the advantage of a candidate statement in the booklet containing the sample ballot. If he gets into a run-off or wins outright in the primary, it will point to the faultiness of Heubscher’s advice to clients not to waste $27,000-plus on advertising in that booklet.
If the administrative law judges do, despite their lack of credentials, win the judgeships they seek, it’s a fair bet that other ALJs will sign up to run in future elections. (Of course, what seems obvious is going to happen in judicial elections often doesn’t. It was widely predicted in 1994 that if then-Assemblyman Terry Friedman bagged the judgeship he was running for—which he did—other legislators, barred by term limits from seeking reelection, would enter future judicial elections…which they haven’t.)
A candidate has not run for the bench in Los Angeles as an “administrative law judge” since 1994 when Deborah Andrews competed, successfully, with two local practitioners for a seat on the Long Beach Municipal Court. A judge allowed her to use the ballot designation of “administrative law judge” over the protest of the Office of Registrar-Recorder, which appealed the ruling, relying on the broad wording in Luke v. Superior Court (1988) 199 Cal.App.3d 1360. There, the Court of Appeal barred a court commissioner from using a title with the word “judge” in it, or any derivative of that word. The legitimacy of Andrews’ designation was upheld in a post-election opinion in Andrews v. Valdez (1995) 40 Cal.App.4th 492.
If there was ever an instance where an administrative law judge was pitted against a deputy district attorney in this county, it was far, far in the past.
There is a third contest on the March 5 ballot where an ALJ is running against a prosecutor. Paul A. Bacigalupo is a State Bar Court judge, billed as “Judge, State Bar,” and one of his three rivals is David Gelfound, listed as “Criminal Prosecutor.” That race, for Office No. 67, is, however, different from the other two races. Unlike Renetzky and Gutierrez, Bacigalupo does have campaign assets beyond his ballot designation.
Indeed, he has some hefty advantages over Gelfound and the other candidates, Steven Lubell, listed as “Superior Court Commissioner,” and David Crawford III, “Trial Attorney.” He has money to spend, has a candidate statement—referring to him twice as “SUPERVISING JUDGE PAUL BACIGALUPO” and twice as “JUDGE PAUL BACIGALUPO”—has impressive endorsements, and has a wife who’s a professional campaign fundraiser. Yesterday, he bagged the endorsement of the Times.
Too, the ballot designation as “Judge, State Bar” is probably stronger than “administrative law judge”—stressing, as it does, the word “Judge.”
It seems near-certain that Bacigalupo will, at the least, make it into a run-off.
The other two races for Los Angeles Superior Court open seats also test the power of the designation as a prosecutor. In those two races, no judge (in the traditional sense) or ALJ is running.
Deputy District Attorney Lauren Weis is competing with three private practitioners for Office No. 53. As the only prosecutor in the race and the only woman, the rexcipient of the Times endorsement, and with considerable financial reserves, it’s conceivable she’ll win outright in the primary. I suspect her prospects of attaining that feat (and a feat it would be in a field of four candidates) would have been far higher had she retained the services of the high-priced outfit Cerrell Associates, Inc. and sprung for a candidate statement. Instead, she opted for Heubscher’s low-cost service.
Two deputy district attorneys—Craig Renetzky (son of ALJ Donald Renetzky) and Richard Naranjo—are in the race for Superior Court Office No. 39. The third man in the contest is perennial candidate Larry H. Layton, a “law school professor.” There are candidates who have, through the past eight years, stretched the truth in claiming to be law professors…including Los Angeles Superior Court Judge Floyd Baxter, who refers to himself on the ballot as “Judge/Law Professor” although he merely teaches a legal subject once a week at a junior college. By contrast, Layton is an honest-to-gosh professor at the Larry H. Layton School of Law, which each year attracts less than a dozen students.
If Layton should get into a runoff, or win outright in the primary, it will serve as validation of the theory that the “law professor” designation wins votes—though the election results two years ago did not bear out that notion. If the two prosecutors get into a runoff, or one wins outright, the supposition will again be discredited.
Should Naranjo win outright, it would have to be attributed to his Times endorsement. If Renetzky nabs the judgeship on March 5, it would have to be credited to the efficacy of state mailers, which I’m told he’s buying placement on.
STATUTORILY MANDATED IMPRECISION — Gelfound’s election challenge last month to Bacigalupo’s ballot designation as “Judge, State Bar” (using a proxy as the petitioner) was plainly unsupported by the cases cited. Bacigalupo is a judge for the State Bar.
Of course, his position would have been stated more accurately had it been possible to use the words “State Bar Court.” That, however, was statutorily precluded. Elections Code §13107(a)(3) limited Bacigalupo to three words describing his “principal professions, vocations, or occupations.” When a statute forecloses accuracy, something’s wrong.
Ironically, that limitation would not have applied to Baxter or to the other challenged incumbent, C. Robert Simpson, who is designated as “Superior Court Judge.” Either could have exceeded three words by stating his title in detailed form—such as “Los Angeles County Superior Court Judge” or “Judge, Superior Court of the State of California for the County of Los Angeles.” This is because of Elections Code §13107(a)(1), which permits this designation:
“Words designating the elective city, county, district, state, or federal office which the candidate holds at the time of filing the nomination documents to which he or she was elected by vote of the people, or to which he or she was appointed, in the case of a superior or municipal court judge.”
Bacigalupo was not elected to the State Bar Court, and was not appointed to a trial court. Thus, he could not have used the full name of the entity on which he serves.
Of course, there is nothing requiring that a candidate use the most precise designation possible—only that a designation not be “misleading.” Given that hearing officers for administrative agencies are now statutorily denominated “judges,” it might well be argued that an administrative law judge would be authorized to use merely the word “judge” as a ballot designation. Would voters be apt to assume the “judge” was the incumbent? Of course. Could the designation be barred as “misleading”? Perhaps not. It might well be found that it cannot be misleading for a candidate to claim to be a “judge” when the candidate is so described in the statute creating the office.
The flaw in the statutory scheme, as I see it, is the lack of a requirement of specificity. If a candidate serves in a public office, it should be required, in all instances, that the office be identified in full. Rather than Bacigalupo being precluded from billing himself as “Judge, State Bar Court” or “State Bar Court Judge,” such a designation should, I submit, have been mandatory.
Two years ago, Mitchell Dawson ran unsuccessfully for the Beverly Hills Municipal Court as a “City Commissioner/Attorney.” One of his opponents protested that this implied he was a court commissioner. Certainly, there was imprecision in the designation, and with imprecision comes confusion.
Under the statute as it existed then, and exists now, Dawson could not have referred to himself, even if he wanted to, as “Beverly Hills City Planning Commissioner” or “Member, Beverly Hills City Planning Commission.” Sec 13107(a)(1) could not be invoked; the office is appointive and isn’t a judgeship. The three-word limit under §13107(a)(3) applied.
Whether inclusion of “city commissioner” was proper is debatable; it did not appear to have been a “principal” pursuit, as required under subd. (3).
What I suggest is that if a candidate works fulltime in a public office, whether the position is elective or appointive, the candidate should be required, under a revised §13107(a)(1), to set forth the office in full. If the work is parttime, such as serving on the Beverly Hills Planning Commission, the candidate should be allowed to state the office in full, under §13107(a)(1), or use a description pursuant to §13107(a)(3) which does not include reference to the public office.
If that were in force in this year’s election, Goldberg, Naranjo, Craig Renetzky, Weis, Gelfound and Walmark would each be identified as a member of the Los Angeles Office of District Attorney; Baxter would be billed as a Los Angeles Superior Court judge; Donald Renetzky and Gutierrez would each be identified by the title he has under Labor Code §27: “workers’ compensation administrative law judge.”
The significance of ballot designations to the outcome of judicial races is such that accuracy should not be foreclosed, as in the case of Bacigalupo’s designation, but rather should be mandated.
WRIST SLAPPED—The four-year effort of Oakland attorney Panos Lagos to persuade the Commission on Judicial Performance to discipline Los Angeles Superior Court Judge James Sutton in connection with his persistent misconduct in stacking the deck against plaintiffs in tort cases has come to an end. The ornery jurist, who sits in Norwalk, drew private discipline.
Here’s a judge who has caused major harm to people through his blatantly prejudicial treatment of cases. He gets off with a secret rebuke. By contrast, Los Angeles Superior Court Judge Nancy Brown was publicly reprimanded based on having barred from her courtroom a low-level court administrator whom she regarded as a liar. The commission is consistent through the years in one respect: its utter inconsistency.
Copyright 2002, Metropolitan News Company