Mon., Feb. 23, 1998; Page 7

Consequences of Campaign Deceit


By Roger M. Grace

Monday, Feb. 23, 1998; Page 7


By Roger M. Grace

(The writer is editor/co-publisher of the Metropolitan News-Enterprise and general counsel for the Metropolitan News Company. He is a member of the State Bars of California and Texas.)


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.


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  

          HOLDING: Where a judicial candidate has "bought" votes through improper promises and prevails at the polls, the candidate may be disqualified from office, but the votes not having been illegal, the votes may not be disregarded, and the losing candidate may not be handed the victory; rather, a vacancy must be declared, to be filled by the governor.  
George W. Bush was nominated at the Republican Convention. He lost the election.

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:  

      The promise was that he would act in a way that would result in a saving of expense to the taxpayers and electors. This was a promise of "valuable consideration." It is, of course, not every promise of pecuniary benefit to the voter that is in violation of statute. A promise by a candidate to limit the cost of maintaining an office by administering it economically is no more than an undertaking to perform his duty, and is clearly not in conflict with the statute. But the promise here made went further than this. By it the candidate held out to the voters as an inducement, not the proper and efficient administration of the office, but the destruction, at least for a time, of an office created by law. It has been held, in several well-considered cases, that a promise by a candidate to discharge the duties of the office for less than the lawful salary or compensation is contrary to public policy, as in the nature of a bribe....The principle applies fully to the case at bar, where the promise was, in effect, that the duties of the office should not be performed at all, and that there would be no expense in connection with it.
Sloss noted that the effect of Head not assuming office was, in truth, that of creating a vacancy for the governor to fill.  

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, he wrote.  
COMMENT: In the 1994 election for an open seat on the Compton Municipal Court, candidate Thomas Townsend made this promise in his candidate statement:  

"Because our leaders should give back to the community, I will, if elected, donate $12,500/year in scholarships to our students. This means that I will personally donate $150,000 for scholarships if I am elected, and serve, two full terms."  

Townsend was elected.  

In Stebbins v. White (1987) 190 Cal.App.3d 769, at 785, it was observed that the statutory provision in Bush "was substantially identical to the present section 29622." Sec. 29622 was in effect in 1994. (It is now §18522.)  

(That section also provided: "Any person or candidate violating this section is punishable by imprisonment in the state prison for 16 months or two or three years.")  

Also in effect in 1994 was Elections Code 120021(c) (now §16100(c)) which authorized an election contest where a candidate had "given to any elector...any bribe or reward, or has offered any bribe or reward for the purpose of procuring his election...."  

Under the reasoning of Bush, these sections would have provided a basis for an election contest challenging Townsend’s right to assume office.  

A question looms, however, as to the constitutionality of so applying the statute as to preclude the making of the promise of a rebate of salary in the form of charitable donations. Would such application offend the First Amendment?  

In Brown v. Hartlage (1982) 456 U.S. 45, the U.S. Supreme Court reversed the decision of the Kentucky Court of Appeals which had invalidated the election of a county commissioner under a statute similar to California’s §18522. The commissioner, in seeking his post, had promised to lower commissioners’ salaries; upon learning that Kentucky law forbade such a promise, he retracted it. Writing for the majority, Justice William Brennan declared that the promise was one protected by the First Amendment. Factors he pointed to which differentiated the promise from a bribe were that it was "made in the full view of the electorate" (id. at 57) and that the benefit would not go solely to those voters who cast their ballots for the candidate making the promise (id. at 58). However, another factor relied upon in that case, and not present with respect to Townsend’s pledge, was that the Kentucky candidate "did not offer the voters a payment from his personal funds." Id. at 57. Later, it was observed that the candidate "did not offer some private payment or donation in exchange for voter support." Id. at 456. Accordingly, Brown is not clear authority, one way or the other. 

Pierce v. Harrold (1982) 138 Cal.App.3d 415  

          HOLDING: Where a judicial candidate has lied on the candidacy declaration and has won election in the primary, that candidate shall be disqualified from office, and the two remaining highest vote-getters in the primary shall face each other in the general election. 
Joanne K. Harrold, a 1980 appointee to the West Orange County Municipal Court, gained election to her post by attaining 62 percent of the vote in the June, 1982 primary election. Orange Superior Court Judge Ronald Eugene Owen nullified her election, in response to two consolidated election contests, on the ground that Harrold committed a violation of Election Code §29303 (now §18203) by falsely stating on her declaration of candidacy that she was a resident of Orange County. That section provided:   

"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:  

      If no candidate has been elected to a nonpartisan office pursuant to Section 6611 or if the number of candidates elected at the primary election is less than the total number to be elected to that office, then candidates for that office at the ensuing election shall be those candidates not elected at the primary who received the next highest number of votes cast for nomination to that office, equal in number to twice the number remaining to be elected to that office, or less, if the total number of candidates not elected is less.
McDaniel wrote:  
      Passing for now the beginning dependent clause of the statutory language, the remainder of the section plainly states that the "candidates for that office at the ensuing election shall be those candidates not elected at the primary who received the next highest number of votes cast for nomination to that office...." Applied to the election here under scrutiny, that yields the inescapable result that Mr. [Ronald] Nix and Mr. [Dan Charles] Dutcher were to be the candidates at the ensuing election. This follows, for they were not elected at the primary, and they received the next highest number of votes cast.  

      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.

COMMENT: An election contest would have lain even if Harrold had not lied in her declaration of candidacy. Sec. 20300(a) in 1984 provided (as §16101(a) does now) that a contest may be waged where "[t]he defendant is not eligible to the office in dispute." Harrold was ineligible based on lack of residency in Orange County. Government Code §71140 generally requires residency of a Municipal Court judge in the judicial district in which he or she serves; §71140.3 makes an exception for judges in Orange County and certain other counties (Los Angeles, Humboldt, Stanislaus, San Mateo, Santa Clara, and San Diego) who need only be a resident of the county. Lack of residency in the county was therefore a basis for contesting Harrold’s election (and an action in quo warranto could have been instituted to compel her removal from the term she was then completing).  

Whatever the basis for challenging Harrold’s election, the ordering of an election between the two challengers was improper. The rationale in Harrold contravenes the teaching of Bush: where votes were not illegal, they cannot be disqualified fn. 3, though the candidate can be. If cognizance is taken of the votes for Harrold, it is seen that they amounted to more than 50 percent of those cast. There was no occasion for a run-off in the general election; the election processes were spent.  

The disqualification of Harrold meant that Harrold could not take office in January and, upon her failing to qualify, a vacancy would have been created for the governor to fill. While the solution of the trial court -- calling a new election -- was preferable in terms of fairness, it was statutorily unauthorized. Sec. 6611 did not provide authority; that section did not contemplate an election taking place in November where one candidate had attained more than half the votes.  

It is a non sequitur for McDaniel to say that where an "election is a nullity, the legal consequence is the same as though the person challenged had never been a candidate." Nullifying the election means that the election is treated as not having occurred. This is hardly the same as what McDaniel did: treat the election as having occurred, but regard Harrold as not having been a candidate in it.


Code of Civil Procedure §803 provides:  

      An action may be brought by the attorney-general, in the name of the people of this state, upon his own information, or upon a complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office....And the attorney-general must bring the action, whenever he has reason to believe that any such office...has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the governor.
Code of Civil Procedure §809 adds that a person found guilty of usurping an office must "pay the costs of the action" -- and, should the court, in its discretion, so order, must pay "a fine not exceeding five thousand dollars, which fine, when collected, must be paid into the Treasury of the State."  

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.


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 rulings."  

Townsend v. State Bar (1935) 4 Cal.2d 619  

          HOLDING: An attorney who makes false statements on a declaration of candidacy is subject to public discipline.
 Corwin A. Townsend in 1930 was suspended from the practice for a year based on assisting in the unauthorized practice of law. In 1932, he became a candidate for the Los Angeles Superior Court. On his sworn declaration of candidacy, he listed "Practice of Law" as his "occupation for the past three years." and added, mendaciously:  

"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):  

      We are not impressed with petitioner's attempt to explain away the falsity of his statement upon the ground that it was "rash and inconsiderate" and the product of slight consideration. The fact that the statement was repeated, under oath, after an interval of approximately two years militates against such a defense. Under the circumstances, the finding of the board that the false statement was "made with intent to deceive" the registrar of voters and all persons entitled to rely thereon is reasonably warranted by the record. 

Johnson v. State Bar (1937) 10 Cal.2d 212  

          HOLDING: Disbarment was not too harsh a sanction for an attorney whose instant offense was making a false statement on a declaration of candidacy where that attorney had incurred prior discipline, had committed a contempt of court, and failed to recognize the seriousness of his offense. 
George C. Johnson was a candidate in 1936 for the Los Angeles Superior Court. He listed his occupation on his sworn declaration of candidacy as "lawyer." Under the category of "occupation for the past three years," he stated: "Lawyer, practicing, and admitted to practice since 1927 in California." Although he did hold a law license, he had been under suspension for the past five months.  

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):  

      It may be admitted that, if the statement of petitioner with reference to his occupation be taken away from the context in which it was used, and entirely divorced from the purpose for which it was uttered and the result intended to be accomplished by its use, then the argument may seem plausible that the sworn statement was not a misstatement. But when said statement is considered in connection with the surrounding situation, and in conjunction with the fact that it was made in a sworn declaration of candidacy for nomination to the position of a judge of the superior court of this state, it is obvious that the statement was deceptive, dishonest, and untruthful, and was deliberately made with the intention of giving an impression which was not correct. Article VI, section 23, of the California Constitution provides that, "No person shall be eligible to the office of ... a judge of a superior court ... unless he shall have been admitted to practice before the Supreme Court of the state for a period of at least five years immediately preceding his election or appointment to such office." It follows that no one is eligible to hold the office of superior judge who has not been an admitted practitioner before the Supreme Court of this state for a period of five consecutive years immediately preceding his election or appointment to such office. Certainly an attorney who has been suspended from the practice of law during this period cannot successfully claim to be eligible....It is self-evident, we think, that said provision requires as a fundamental qualification for the office of superior judge, that the candidate for such position be qualified as an attorney actually entitled to practice in the state courts, and when petitioner in his sworn declaration of candidacy for such position made under oath the statement that his occupation was that of "lawyer" and his occupation for the three years immediately preceding was that of "lawyer, practicing, and admitted to practice since 1927", there cannot be the slightest doubt that he intended thereby to convey the idea that he was in fact a lawyer legally entitled to practice in the state courts. These statements of petitioner, considered in their context as they necessarily must be, were false and were undoubtedly made with the intent to deceive. Clearly, the local administrative committee was justified in so finding.
Curtis remarked (at 217) that "[t]he penalty of disbarment may seem unduly harsh in view of the nature of the charge made against petitioner." However, he pointed to the prior discipline; the fact that Johnson was found in contempt for bringing a writ proceeding in the Superior Court seeking to force the registrar to accept his declaration of candidacy without revealing that writ relief had been unsuccessfully sought in the Court of Appeal; and "the fact that petitioner seems to be utterly incapable of realizing that his conduct in the instant case is in the slightest degree blameworthy." Ibid.

Gonzales v. Comm. on Judicial Performance (1983) 33 Cal.3d 359  

          HOLDING: Issuing a judicial opinion in the form of a press release during a judicial campaign constituted willful misconduct.
Campaign misconduct was one of 20 counts leading to the removal of Mario Gonzales from the East Los Angeles Municipal Court. The misconduct occurred when Gonzales ran, unsuccessfully, for the Los Angeles Superior Court in 1978 fn 4.

In a "By the Court" opinion, the high court said:  

      Judge Gonzalez further demonstrates his disregard for proper judicial procedures by his highly unorthodox and patently improper disposition of the case of People v. Rebecca Hernandez. (Count V, ¶ 3.) The facts regarding this matter are virtually undisputed. The defendant was cited for violating the county dog leash and license ordinance, and failed to appear on the appointed court date. In chambers, on the evening of May 25, 1978, petitioner on his own initiative dismissed the case and declared the ordinance unconstitutional on its face. No notice or opportunity to be heard was afforded the People; no motion had ever been made by the defendant. Judge Gonzalez merely issued what he described in his testimony before the masters as "an opinion in the form of a press release." In an almost farcical misapplication of constitutional law, Judge Gonzalez declared that the dog leash/license ordinance violated the equal protection clause of the Fourteenth Amendment because it applied to dog-owners but not to owners of "(a) Canaries, (b) Chinchillas ... (k) Mynah birds ... (o) Squirrel monkeys, (p) Steppe legal [sic] eagles, (q) Toucans ..." and so on. Although Judge Gonzalez sought to start the entire proceeding over so that any appeal taken might reach substantive issues, the district attorney refused to forego immediate review and petitioner's ruling was reversed because of its procedural impropriety.  

      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  

          HOLDING: Conviction on five counts of filing false papers in connection with a judicial race warranted disbarment.
Alfredo Rivas in 1982 provided San Bernardino County election officials with five separate documents falsely stating his home address to be in Chino, where he sought to run for the municipal court.  

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):  

      We first reject petitioner's attempt to minimize the seriousness of his crimes. Although only a single ballot campaign was involved, petitioner committed five separate acts of deceit solely to advance his career. Such dishonesty -- particularly because it was aimed at ascending to the judiciary -- raises serious questions concerning his professional trustworthiness and[, page 801] judgment. (See Levin v. State Bar (1989) 47 Cal.3d 1140, 1147; Carter v. State Bar (1988) 44 Cal.3d 1091, 1100; Coppock v. State Bar (1988) 44 Cal.3d 665, 679-680.) Petitioner's criminal conduct also inflicted substantial harm upon "the public [and] the administration of justice." (Std. 1.2(b)(iv).) Through use of these false documents, he exposed voters to an unqualified candidate and presumably drew votes away from candidates legitimately on the ballot. While the record does not reflect whether petitioner's candidacy actually affected the election's outcome, his conduct seriously undermines public confidence in the integrity of the legal profession and the election process.
The opinion continued (at 802):  
      As noted by the review department, petitioner's lack of prior discipline in the 10 years preceding the instant misconduct weighs in his favor. (See std. 1.2(e)(i).) However, a "clean" record and "good" reputation do not warrant rejection of a disbarment recommendation where, as here, a significant risk to the public and profession remains. Petitioner has violated a basic rule of ethics -- honesty -- under obvious, serious, and essentially unmitigated circumstances. We therefore adopt the State Bar Court's recommendation that petitioner be disbarred.

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:  

      Every person is guilty of a misdemeanor who, with intent to mislead the voters in connection with his or her campaign for nomination or election to a public office or in connection with the campaign of another person for nomination or election to a public office, does either of the following acts:  

      (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.

Two years ago, a former Rio Hondo Municipal Court judge, J.B. Casas, who had been deposed by voters in Rio Hondo, challenged an incumbent on the East Los Angeles Municipal Court, Ruth Kwan. Casas repeatedly referred to himself in his candidate statement and in campaign literature as "JUDGE CASAS," creating the impression that he was the incumbent. Kwan challenged portions of the candidate statement under §13308. She also sought to enjoin references to "JUDGE CASAS" in campaign literature, invoking §18350.  

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):  

      [W]e would be compelled to hold the ordinance unconstitutional, in the absence of a showing that there is a legitimate public interest which was protected by its enactment. However, since this matter has reached this court after the trial court sustained a demurrer to the complaint on First Amendment grounds, there has been no factual hearing at which the People have had the opportunity to present evidence, if such exists, that [Municipal Code] section 4231 serves a legitimate governmental purpose. We believe the demurrer procedure is ill-suited for the resolution of the issue presented by the respondent's challenge to the ordinance. A more appropriate procedural remedy would be a hearing on a motion to dismiss on First Amendment grounds.

The case was remanded for such a determination.


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:  

      (a) No person who is found liable in a civil action for making libelous or slanderous statements against an opposing candidate during the course of an election campaign for any... county..., district, or any other local elective office shall retain the seat to which he or she is elected, where it is established that the libel or slander was a major contributing cause in the defeat of an opposing candidate. A libelous or slanderous statement shall be deemed to have been made by a person within the meaning of this section if that person actually made the statement or if the person actually or constructively assented to, authorized, or ratified the statement.  

       (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.


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:  

      No person convicted of a misdemeanor under this title shall be a candidate for any elective office... or act as a lobbyist for a period of four years following the date of the conviction unless the court at the time of sentencing specifically determines that this provision shall not be applicable. A plea of nolo contendere shall be deemed a conviction for purposes of this section. Any person violating this section is guilty of a felony.
The constitutionality of that provision was upheld in People v. Ballard (1980) 104 Cal.App.3d 757. Presiding Justice Robert Gardner wrote (at 764):  
      The Political Reform Act mandates the full and truthful disclosure of campaign receipts and expenditures. Accurate record keeping is an essential prerequisite to such disclosure. The act's enforcement provisions must contain sufficient penalties to achieve this goal. The four-year disqualification protects the public from candidates convicted of violating the act just as imprisonment protects the public from further violent acts committed by persons who have been convicted of violent crimes.  

      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.

There are no other published cases dealing with that section.  

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

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