Campaign misconduct can have various consequences. One of them is losing the election. Example: a lawyer running against then-Pasadena Municipal Court Judge Gilbert Alston in 1978 proclaimed in eleventh-hour ads that Alston had handled thousands of felonies (i.e., arraignments and preliminary hearings) but had never sent a felon to state prison -- the obvious inference being that he had the power to do so, but was soft on crime. The Pasadena Star News, theretofore virtually oblivious as to the judicial campaign being in progress, came to Alston’s aid with denunciations of the deception. Alston won.
A lawyer, Laurie Harrold, who had served as a volunteer judge pro tem, in 1996 appeared in a campaign leaflet in a judicial robe, implying enjoyment of a judicial office. The Los Angeles County Bar Association’s Judicial Evaluations Committee fn. 1 socked her with a "not qualified" rating, diminishing her chances. She lost.
The lesson of this would be that "cheaters never prosper," except that there are certain other examples where cheaters have won their races. An assemblyman in 1994 was adjudicated by a Los Angeles Superior Court judge to have engaged in campaign lying, but prevailed at the polls. (That judge, Terry Friedman, will be conducting a "judicial elections workshop" for the California Judges Assn. on March 14.)
The mere prospect that cheating will backfire is not a sufficient deterrent, and never has been. Disincentives to cheating must be in place.
There is a portion of the electorate that does seek to base decisions in judicial elections not on whims and guesses, but on information. It is in the public’s interest that this segment of the electorate not be swayed by falsehoods, given the obvious undesirability of propagators of falsehoods assuming judicial roles. And it is in the interest of the public that the integrity of the process be promoted.
Some disincentives have previously been spotlighted here. In the first article in this series, it was noted that Canon 5(B) of the Code of Judicial Ethics, added two years ago, renders it a disciplinable offense for judges or other judicial candidates to "knowingly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or his or her opponent." That rule is enforceable by the Commission on Judicial Performance. A new rule of professional conduct for lawyers, Rule 1-700, gives the State Bar authority to discipline lawyers who, in the course of judicial campaigns, run afoul of that stricture.
In the last article, attention was drawn to Elections Code fn. 2 §18351 which provides that a candidate "who knowingly makes a false statement of a material fact in a candidate's statement...with the intent to mislead the voters in connection with his or her campaign for nomination or election to a nonpartisan office is punishable by a fine not to exceed one thousand dollars ($1,000)." It was suggested that this well-intentioned but unenforced provision be supplemented with or supplanted by a statute investing judges who hear disputes over ballot designations or candidate statements with the power to impose monetary sanctions for campaign lies not to exceed $1,500, payable to the county, and monetary sanctions to the prevailing party in the proceedings before the court.
Other disincentives to campaign dishonesty are discussed below.
II. NULLIFICATION OF ELECTION RESULTS
In a case discussed below, an appointed judge ran for election and won the office at the polls -- but lost it in the Superior Court. A rival candidate filed an election contest, and produced evidence of a campaign falsehood of such a nature as to warrant nullification of the election results.
Sec. 16100 sets forth various grounds for a contest: "(a) That the precinct board or any member thereof was guilty of malconduct. [ ¶ ] (b) That the person who has been declared elected to an office was not, at the time of the election, eligible to that office. [ ¶ ] (c) That the defendant has given to any elector or member of a precinct board any bribe or reward, or has offered any bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise defined in Division 18 (commencing with Section 18000). [ ¶ ] (d) That illegal votes were cast. [ ¶ ] (e) That the precinct board in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election as to any person who has been declared elected. [ ¶ ] (f) That there was an error in the vote-counting programs or summation of ballot counts."
Sec. 16440 deals with three grounds: "(a) The defendant is not eligible to the office in dispute. [¶ ] (b) The defendant has committed any offense against the elective franchise as defined in Division 18 (commencing with Section 18000). [¶ ] (c) A sufficient number of votes were illegal, fraudulent, forged, or otherwise improper, and that had those votes not been counted the defendant would not have received as many votes as the contestant." Where §16440 applies, a proceeding is instituted by the filing of an affidavit showing cause for nullification of the election, with a copy served on the defendant-candidate by personal service or registered mail (§16442), the defendant has five days within which to file an answer and a cross-contest affidavit (§16443), and "[n]o special appearance, demurrer or objection may be taken other than by the affidavits which shall be considered a general appearance in the contest (§16444).
In primary elections, there are especially quickened procedures. The contest must be filed within five days of the completion of the tally by the Board of Supervisors. Sec. 16421. A party wishing to appeal must perfect the appeal within 10 days, and the court has 10 days within which to act. Sec. 16920. No appeal to the Supreme Court is permitted. Sec. 16921.
Bush v. Head (1908) 154 Cal. 277
This bit of history relates to a political occurrence in 1906 when George W. Bush was nominated at the GOP state convention in California to succeed himself as a judge of the Shasta Superior Court. He had been appointed to the post the previous year after a second Superior Court judgeship in Shasta was created by legislation.
The Democratic Party nominated Charles M. Head. The latter nomination was strange -- which is not political commentary, but an observation based on the circumstances: Head was already serving a term as a judge of the Shasta Superior Court, a term that did not expire until January, 1909. He was nominated after promising the delegates that if he won, he would fail to be sworn in and would not discharge the duties of the office.
The idea was to save the taxpayers the expense of paying the salary of a second Superior Court judge; such a judge wasn’t needed, Head argued, because the county already had a judge.
Running on that platform, Head won. The results were 1,561 votes for him, 1,210 for Bush.
Bush filed an election contest. A demurrer was sustained without leave to amend, and Bush appealed. The California Supreme Court reversed, in an opinion by Justice M.C. Sloss.
The Purity of Elections Law provided for a contest to the election of any person who committed any of various specified offenses, including promising to pay "any money or other valuable consideration" for a vote. Head "made a promise in order to induce the voters to cast their ballots for him," Sloss said (at 283), explaining:
Inasmuch as the votes cast for Head were not "illegal"
votes, he said, the trial court could not disqualify votes and call Bush
the winner. It could, however, disqualify Head and declare the office vacant,
Pierce v. Harrold (1982) 138 Cal.App.3d 415
"Any person who files or submits for filing a nomination paper or declaration of candidacy knowing that it or any part of it has been made falsely is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the state prison for 16 months or two or three years or by both the fine and imprisonment."
The Fourth District Court of Appeal, in an opinion by Justice F. Douglas McDaniel, affirmed. It declined to read into the section a proviso that the successful candidate not be subject to removal absent a conviction for submitting false election paper. McDaniel scoffed at 426:
"...[T]o make conviction of an offense a condition precedent even to initiating an election contest would represent an absurd contradiction in legislative policy. As contestants observe, ‘It does not require extended discussion of the realities relating to the time needed to prosecute even the least complex criminal case to compel the conclusion that the conviction requirement would render contests under...Section 20021(c) virtually [impossible to accomplish within the applicable statute of limitations].’"
The trial court had found that Harrold actually resided in Riverside when she made her declaration and that she used her Newport Beach property only occasionally. On appeal, she challenged the substantiality of the evidence. McDaniel said (at 428) that the ordinary civil standard of proof "by a preponderance of the evidence" pertained, and that, "[a]ctually, in terms of the evidence, this is not even a close case." He recited the evidence, including gas, telephone and electricity bills for the Newport Beach abode showing infrequent use and her being registered to vote in Riverside.
McDaniel said the trial court did not err in ordering that a November run-off be held between her two challengers in the primary. The jurist pointed to §6612 (now §8141) which provided:
The dispositive question then turns on the application of the initial language, "If no candidate has been elected to a nonpartisan office pursuant to Section 6611...." That section has two paragraphs. In pertinent part, the first paragraph provides that "Any candidate for a nonpartisan office who at a primary election receives votes on a majority of all the ballots cast for candidates for that office shall be elected to such office." In applying that section it necessarily follows that "candidate" must be construed broadly to contemplate the consequences of an election contest. Moreover, if the result of such a contest demonstrates, as here, that the election is a nullity, the legal consequence is the same as though the person challenged had never been a candidate. That is what "nullity" means in a variety of legal contexts. Accordingly, it can be properly observed, in view of what we have decided earlier, that no candidate received a majority of the votes cast for the office here involved.
The second paragraph of section 6611 provides that "Where a candidate has been elected to a nonpartisan office at the primary election, that office shall not appear on the ballot at the ensuing general election, notwithstanding the death, resignation or other disqualification of the candidate at a time subsequent to the primary election." Following the same reasoning as relied on above, we hold that no candidate was elected at the primary, and so the second paragraph likewise has no application to the facts before us.
III. ACTIONS IN QUO WARRANTO
Code of Civil Procedure §803 provides:
Sec. 803, enacted in 1872 and amended only once, in 1907, codifies the equitable remedy of an action in quo warranto, which is derived from common law (International Assn. of Fire Fighters v. City of Oakland (1985) 174 Cal.App.3d 687) and has been available in California from the outset of statehood (People v. Olds (1853) 3 Cal. 167). While any voter may bring an election contest, actions in quo warranto are reserved to the attorney general (People ex rel. Budd v. Holden (1865) 28 Cal. 123). Although the attorney general may consent to an action being brought by an individual on behalf of the people, the attorney general remains in charge of that action. People v. Petroleum Rectifying Co. (1937) 21 Cal.App.2d 289, 290. Refusal of the attorney general to grant leave to bring such an action may be judicially countermanded where the refusal is extreme and clearly indefensible (Lamb v. Webb (1907) 151 Cal. 451), but that power of the courts, in practice, is not exercised. International Assn. of Fire Fighters v. City of Oakland (1985) 174 Cal.App.3d 687, 697.
"Since 1866 our courts have held the proper method of challenging the right of a judge to hold office is by a quo warranto proceeding." People v. Bowen (1991) 231 Cal.App.3d 783, 789.
There are a few reported cases dealing with quo warranto actions relating to the right to hold judicial office. For example, in People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636, the high court held that an action in quo warranto was the proper means to challenge the entitlement of Rudolph A. Rapsey to hold onto his post as post of city judge of San Bruno after he accepted the job of city attorney. However, a review of case law reveals no instance in which a judicial election has been set aside by means of this ancient writ.
IV. DISCIPLINARY ACTIONS
The Supreme Court may suspend or disbar lawyers committing acts involving moral turpitude. Bus. & Prof. Code §6106. Campaign deceit falls in that category -- as the Supreme Court declared in imposing a two-year suspension on Donald H. Segretti in connection with non-Watergate related dirty tricks during the 1972 presidential election. Segretti v. State Bar (1976) 15 Cal.3d 878, 887-888.
Campaign misconduct on the part of a sitting judge can constitute "willful misconduct," justifying public discipline, as a case summarized below shows.
Private discipline has been imposed by the Commission on Judicial Performance in connection with election conduct. The commission’s 1988 annual report recites a private admonishment for a judge under these circumstances:
"A judge, who was standing for re-election, made speeches
to jurors which could reasonably have been understood as electioneering.
The judge also ran campaign advertisements which appeared to promise certain
Townsend v. State Bar (1935) 4 Cal.2d 619
"I was admitted to practice as an attorney and counselor in all the courts of California, at a session of the District Court of Appeal, on the 23rd day of May, 1921, and have ever since been in active practice thereunder and thereby."
He lost the election.
Two years later, Townsend tried again, setting forth the identical false statement under oath. This time, the State Bar took notice of the deception, and instituted disciplinary proceedings. He conceded that his statements were "rash and inconsiderate," but rationalized that he really had been in practice because had appeared in court during his period of suspension in pro per. He explained:
"[I] didn't intend to state and I didn't state I was practicing as an attorney. I meant I was practicing with such ability as I had. I was functioning before the courts."
The Board of Governors recommended a six-month suspension, which the Supreme Court imposed. Chief Justice William H. Waste wrote (at 621):
Johnson v. State Bar (1937) 10 Cal.2d 212
This case from different from the situation in Townsend, he protested. Townsend, during his suspension, was representing only himself, but Johnson proclaimed, he was representing clients in federal court.
Justice Jesse Curtis responded (at 215-216):
Gonzales v. Comm. on Judicial Performance (1983) 33 Cal.3d 359
In a "By the Court" opinion, the high court said:
Petitioner openly admits and defends his action: "... I did it under the theory that the statute was unconstitutional on its face, and a judge is permitted to do that if that be the case....As for that, it can be ex parte. That is the law." Yet, not surprisingly, petitioner does not cite any legal authority for the untenable conclusion that a judge may dispose of cases and invalidate legislation without affording the parties an opportunity to participate. By his flagrant and deliberate disregard for even the minimal requirements of fairness and due process petitioner has far exceeded the bounds of his judicial authority....Furthermore, the facts strongly suggest that as a candidate for election to the superior court at the time of this ruling, Judge Gonzalez was motivated by a desire for preelection publicity. Though his "press release opinion" may indeed have earned him a certain political notoriety, such a blatant exploitation of the judicial office for political ends seriously and impermissibly undermines public esteem for the impartiality and integrity of the judiciary. While petitioner apparently fails to appreciate the gravity of his transgression, we hold his action to constitute willful misconduct as a matter of law.
In re Rivas (1989) 49 Cal.3d 794
The following year, he charged and convicted on five felony counts: two counts of violating §29200(a) (now §18100) by willfully registering at an address where he did not live and three counts of violating §29303 (now §18203) by knowingly filing false election documents. Rivas was placed on two years' probation on various conditions, including 200 hours of community service and payment of a $2,500 fine.
In a "By the Court" opinion, the California Supreme Court ordered disbarment (with Justice Stanley Mosk dissenting on the ground that the penalty was excessive). The court’s majority said (at 800-801):
V. INJUNCTIVE RELIEF
Injunctive relief in connection with challenges to ballot designations (§13107) and candidate statements (§§ 13307, 13308) have been previously discussed in this series. A far lesser utilized provision is §18350, which provides:
(a) Assume, pretend, or imply, by his or her statements or conduct, that he or she is the incumbent of a public office when that is not the case.
(b) Assume, pretend, or imply, by his or her statements or conduct, that he or she is or has been acting in the capacity of a public officer when that is not the case.
Any violation of this section may be enjoined in a civil action brought by any candidate for the public office involved.
On Jan. 19, 1996, Los Angeles Superior Court Judge Robert H. O’Brien issued a preliminary injunction enjoining the registrar recorder from printing the candidate statement without deleting the title "Judge" before Casas’s name and without making other changes.
Relying on §18350, O’Brien also enjoined Casas, "his agents, servants, employees, and all those acting in concert with him, from referring to himself, in his candidate’s statement or other election-related materials, with the title ‘Judge.’" Preliminary injunction, Kwan v. McCormack, Casas RPI, BC 142302, p. 2, lines 24-28.
Casas was not charged with a misdemeanor.
Kwan won the election.
While Alfredo Rivas was prosecuted for filing false election papers, prosecutions of judicial candidates for campaign offenses is hardly a common occurrence. As noted, neither Joanne Harrold nor J.B. Casas was criminally charged.
A candidate for the Los Angeles Superior Court in 1976, Arthur Stanley Katz, did face charges in Santa Monica Municipal Court of violating a local ordinance by affixing campaign posters to telephone poles and sign posts. Santa Monica Municipal Court Judge Rex Minter dismissed the action after sustaining a demurrer to the complaint without leave to amend. The Appellate Department of the Los Angeles Superior Court reversed in People v. Katz (1977) 70 Cal.App.3d Supp. 1, in an opinion by Judge Arthur Alarcon (now a senior judge of the Ninth U.S. Circuit Court of Appeals. Expressing concern that the ordinance banned all posting on public property, Alarcon said (at Supp. 8):
The case was remanded for such a determination.
VII. LIBEL ACTIONS
Libel and slander actions are sometimes brought during political contests to draw attention to the falsity of campaign charges. The true object generally is publicity, and these actions seldom go to trial. This device obviously could be used in a judicial election, but such use traditionally does not occur.
Garnering damages in election-related defamation cases is generally not a realistic objective. Court of Appeal Justice Arthur Gilbert pointed out in Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, at 955, that the plaintiff in the instant case had "not cited a single case in which a candidate has recovered damages for defamatory statements arising during the course of a campaign," and remarked:
"In the solitary case that we found, the defamatory statements went well beyond the pale of what is protected under the First Amendment. (Goldwater v. Ginzburg (2d Cir. 1969) 414 F.2d 324 [a magazine knowingly and falsely printed that a presidential candidate suffered from a serious mental illness].)" Ibid.
The prospects of a campaign libel action succeeding are diminished in light of the anti-SLAPP statute, Code of Civil Procedure §425.16, which authorizes a motion to strike the complaint where the action arises out of the exercise of free speech or petition. It may be used in an election defamation case; "There is nothing in the language of section 425.16 that denies its use by politicians." Id. at 950.
An action against a candidate is an action against a public figure, and that means that the plaintiff has a burden of establishing actual malice by clear and convincing evidence. Harte-Hanks Communications v. Connaughton (1989) 491 U.S. 657, 659.
Thus, the prospects of a successful libel or slander action in a judicial campaign are remote. After all, lawyers and lawyers-turned-judges are too adept in the art of taking literal truth and so phrasing it as to create deception; candidates in judicial elections could not possibly engage in knowing falsehoods or reckless disregard of the truth, could they?
Given the caliber of some judicial candidates, the prospect of a meritorious action for defamation arising from campaign statements should not be discounted.
Code of Civil Procedure §460.7 would afford expedited procedures in trying election libel or slander cases and §44 would provide expedited appeals.
Elections Code §20501 would render the candidate liable for defamation by a committee controlled by the candidate. Sec. 20502 would render the unwillingness (or willingness) of a candidate to retract a lie admissible in the punitive damage phase of the trial.
The consequences of a candidate assailing a rival with defamatory statements, uttered with actual malice, can go beyond civil liability. Voters on June 5, 1984 approved a ballot proposition which added to the state Constitution Art. VII, §10, providing for the disqualification from office of a candidate who wins election through use of libel or slander. There are no cases decided under that provision. It reads, in part:
(b) In order to determine whether libelous or slanderous statements were a major contributing cause in the defeat of an opposing candidate, the trier of fact shall make a separate, distinct finding on that issue. If the trier of fact finds that libel or slander was a major contributing cause in the defeat of an opposing candidate and that the libelous or slanderous statement was made with knowledge that it was false or with reckless disregard of whether it was false or true, the person holding office shall be disqualified from or shall forfeit that office as provided in subdivision (d). Findings required by this section shall be in writing and shall be incorporated as part of the judgment.
(c) In a case where a person is disqualified from holding office or is required to forfeit an office under subdivisions (a) and (b), that disqualification or forfeiture shall create a vacancy in office, which vacancy shall be filled in the manner provided by law for the filling of a vacancy in that particular office.
(d) Once the judgment of liability is entered by the trial court and the time for filing a notice of appeal has expired, or all possibility of direct attack in the courts of this state has been finally exhausted, the person shall be disqualified from or shall forfeit the office involved in that election and shall have no authority to exercise the powers or perform the duties of the office.
(e) This section shall apply to libelous or slanderous statements made on or after the effective date of this section.
VIII. FOUR-YEAR BAR ON CANDIDACY
Judicial candidates are subject to various provisions of the Political Reform Act of 1974 dealing with such matters as campaign-reporting. Government Code § 91000(a) provides that "[a]ny person who knowingly or willfully violates any provision of this title is guilty of a misdemeanor." Subd. (b) adds: "In addition to other penalties provided by law, a fine of up to the greater of ten thousand dollars ($10,000) or three times the amount the person failed to report properly or unlawfully contributed, expended, gave or received may be imposed upon conviction for each violation."
Theoretically, it would be a misdemeanor to commit such missteps as paying any expense of $100 or more in cash, proscribed by Government Code §84300(b).
Where a misdemeanor is committed under the act, the offender is subject to being barred from office for four years. Government Code section 91002 provides:
The state has a compelling interest in protecting the public from persons who have been convicted of misdemeanor violations of the Political Reform Act and deterring others from violating the act which justifies the four-year disqualification.
As noted in the second article in this series, judicial are now subject to these portions of the Political Reform Act of 1974: Government Code §89502 (banning honoraria) and Government Code §89503 (proscribing receipt of gifts valued at more than $250, adjusted biennially to reflect inflation). Violations of those statutes have meaningful consequences, but do not constitute misdemeanors nor carry the prospect of a four-year disqualification from office. The sections are in Chapter 9.5 of the act; §89520, also part of that chapter, specifies: "The remedies provided in Chapter 11 (commencing with Section 91000) shall not apply to violations of this chapter."
However, violations of various reporting sections applicable to judicial candidates (as well as others) are rendered misdemeanors by virtue of Government Code §91001(a), bringing into play the four-year disqualification provision of Government Code §91002. Some day, a judicial candidate will be stumbling into one of these pitfalls.
1. Evaluations of the committee are opinion; candidates receiving unfavorable evaluations have no cause of action for libel. Botos v. Los Angeles County Bar Assn. (1984) 151 Cal.App.3d 1083. Return to text
2. All citations are to that code unless otherwise noted. Return to text
3. The flip side is that where votes are illegal or otherwise invalid, they are simply disregarded. In Blaine v. Board of Supervisors (1934) 1 Cal.2d 486, it was held that in a three-way race for the post of justice of the peace -- where it was widely known that the incumbent had been murdered a few days before the election -- all votes cast for the incumbent were invalid and were to be ignored. Consequently, the candidate with the greatest number of votes was determined to have been elected, though he would not have attained a majority had the votes for the incumbent been figured in. (Votes for a deceased candidate are no longer viewed as invalid. See §15402.) Return to text
4. It was a four-way race for an open seat; then-Los Angeles Municipal Court Judge Irwin Nebron and then-Los Angeles Superior Court Commissioner Ricardo Torres made it to the run-off, with Nebron (now retired) winning the election. Torres was subsequently appointed to the court. Return to text