IN A SERIES OF ARTICLES ON LAW AFFECTING JUDICIAL ELECTIONS
Roger M. Grace
Elections Code §13307 (formerly §10012) permits
each candidate for election to judicial office (or other non-partisan office)
to place a "candidate statement" in the Voters’ Pamphlet which accompanies
the sample ballot. The candidate must pay for the space, unless the candidate
is an indigent — which is not likely when it comes to judicial candidates.
In essence, the county sells advertising space to candidates,
at cost. The rules are set by statute as to what may and may not be included
in the ads. Something that may not be included is reference to the opposing
candidate — a restriction that has been upheld by the California Supreme
A recurring question is whether the county
can be compelled to include judicial candidate statements in the Voters’
Pamphlet accompanying the sample ballot in the absence of payment of
the candidate’s pro rata share of the cost. fn.
1 A 1980 Court of Appeal decision, Mackey
v. Panish, answered the question decisively in the negative, but
litigation continues, as discussed below.
Each candidate for nonpartisan elective office in any local
agency, including any city, county, city and county, or district,
may prepare a candidate's statement on an appropriate form provided
by the elections official. The statement may include the name,
age and occupation of the candidate and a brief description,
of no more than 200 words, of the candidate's education and
qualifications expressed by the candidate himself or herself.
However, the governing body of the local agency may authorize
an increase in the limitations on words for the statement from
200 to 400 words. The statement shall not include the party
affiliation of the candidate, nor membership or activity in
partisan political organizations.
The statement authorized by this subdivision shall be filed
in the office of the elections official when the candidate's
nomination papers are returned for filing, if it is for a primary
election, or for an election for offices for which there is
no primary. The statement shall be filed in the office of the
elections official no later than the 88th day before the election,
if it is for an election for which nomination papers are not
required to be filed. If a runoff election or general election
occurs within 88 days of the primary or first election, the
statement shall be filed with the elections official by the
third day following the governing body's declaration of the
results from the primary or first election.
Except as provided in Section 13309, the statement may be withdrawn,
but not changed, during the period for filing nomination papers
and until 5 p.m. of the next working day after the close of
the nomination period.
The elections official shall send to each voter, together with
the sample ballot, a voter's pamphlet which contains the written
statements of each candidate that is prepared pursuant to this
section. The statement of each candidate shall be printed in
type of uniform size and darkness, and with uniform spacing.
The elections official shall provide a Spanish translation to
those candidates who wish to have one, and shall select a person
to provide that translation from the list of approved Spanish
language translators and interpreters of the superior court
of the county or from an institution accredited by the Western
Association of Schools and Colleges.
The local agency may estimate the total cost of printing, handling,
translating, and mailing the candidate's statements filed pursuant
to this section, including costs incurred as a result of complying
with the federal Voting Rights Act of 1965, as amended. The
local agency may require each candidate filing a statement to
pay in advance to the local agency his or her estimated pro
rata share as a condition of having his or her statement included
in the voter's pamphlet. In the event the estimated payment
is required, the receipt for the payment shall include a written
notice that the estimate is just an approximation of the actual
cost that varies from one election to another election and may
be significantly more or less than the estimate, depending on
the actual number of candidates filing statements. Accordingly,
the elections official is not bound by the estimate and may,
on a pro rata basis, bill the candidate for additional actual
expense or refund any excess paid depending on the final actual
cost. In the event of underpayment, the elections official may
require the candidate to pay the balance of the cost incurred.
In the event of overpayment, the elections official shall prorate
the excess amount among the candidates and refund the excess
amount paid within 30 days of the election.
Nothing in this section shall be deemed to make any statement
or the authors thereof free or exempt from any civil or criminal
action or penalty because of any false, slanderous, or libelous
statements offered for printing or contained in the voter's
Before the nominating period opens, the local agency for that
election shall determine whether a charge shall be levied against
that candidate for the candidate's statement sent to each voter.
This decision shall not be revoked or modified after the seventh
day prior to the opening of the nominating period. A written
statement of the regulations with respect to charges for handling,
packaging, and mailing shall be provided to each candidate or
his or her representative at the time he or she picks up the
purposes of this section and Section 13310, the board of supervisors
shall be deemed the governing body of judicial elections.
addition to the restrictions set forth in Section 13307, any
candidate's statement submitted pursuant to Section 13307 by
a candidate for judicial office shall be limited to a recitation
of the candidate's own personal background and qualifications,
and shall not in any way make reference to other candidates
for judicial office or to another candidate's qualifications,
character, or activities. The elections official shall not cause
to be printed or circulated any statement which the elections
official determines is not so limited or which includes any
reference prohibited by this section.
A. Validity of the
Loza v. Panish (1980)
102 Cal.App.3d 821
A candidate statement is not limited to a discussion of the candidate’s
own background and qualifications, and the purported authorization
to the local election official to reject statements containing
improper matter is void as violative of state and federal rights
to freedom of expression. Partially judicially abrogated.
Elections Code §10012 provided that a candidate statement
"may include the name, age and occupation of the candidate and a brief
description of no more than 200 words, of the candidate's education and
qualifications expressed by the candidate himself ...." (Sec. 13307 now
contains that same verbiage except that there is a comma after "description"
and the word "himself" is followed by "or herself.")
A voter sought a writ in the Los Angeles Superior Court
to bar the registrar-recorder from accepting any statement for publication
which contained anything other than a description of the candidate’s education
and qualifications, and in particular, that any references to the opposing
candidate be suppressed.
The case drew a majority opinion by Presiding Justice
Lester Wm. Roth, a concurring opinion by Justice Lynn Compton, and a concurring
and dissenting opinion by Justice Edwin Beach.
With respect to the trial court’s denial of an order limiting
statements to recitations of background and qualifications, the panel was
united. Noting that that there was an lack of legislative history to illuminate
the lawmakers’ intent, Roth declared (at 824) that "on the basis of principles
of statutory construction sufficiently familiar as to make citation of
authority unnecessary," the court accepted the registrar-recorder’s position
that "may" was permissive and non-restrictive. Accordingly, he said, "a
candidate's statement may include information regarding his qualifications
which goes beyond mere personal data respecting his name, age, occupation
and education." Ibid.
The other aspect of the case was the petitioner’s bid
to block the inclusion in candidate statements of matter denigrating opponents.
Rather than addressing the issue narrowly, the majority declared unconstitutional,
under the state and federal constitutions, the portion of the statute under
which the relief was sought. It read:
The clerk shall reject any statement, which contains
any obscene, vulgar, profane, scandalous, libelous or defamatory matter,
or any language which in any way incites, counsels, promotes or advocates
hatred, abuse, violence or hostility toward, or which tends to cast ridicule
or shame upon any person or group of persons by reason of sex, race, color,
religion or manner of worship, or any language or matter the circulation
of which through the mails is prohibited by Congress.
Roth declared (at 826):
[W]e are of the view that portion of Elections Code
section 10012 found in its fourth paragraph and which begins "The clerk
shall reject" and ends "is prohibited by Congress." is as written violative
of constitutional rights of freedom of expression, both federal and state,
and that being thus offensive to such safeguards, the portion cannot stand.
And this is true in spite of the fact the Legislature's action in providing
by statute a means whereby political candidates may make themselves known
to the voting public may be deemed gratuitous. Having elected to make the
candidate's statement available, it must do so subject to constitutional
Beach contended (at 827) that it was unnecessary to reach
the constitutional question in order to affirm the trial court’s denial
of a writ inasmuch as the trial court merely found an insufficient factual
basis to support the relief that was sought. In any event, he maintained,
the statute does pass constitutional muster, arguing (at 828), "There are
cases too numerous to list where the United States Supreme Court has upheld
restrictions not only upon time, place and manner of speech and writing,
but upon content as well."
In response to this decision, the Legislature later that
year enacted §10012.1, now §13308, which applies only to judicial
candidates. It limits such a candidate to stating his or her own background
and qualifications and forbids any "reference to other candidates for judicial
office or to another candidate's qualifications, character, or activities."
Clark v. Burleigh
(1992) 4 Cal.4th 474
The statutory prohibition on inclusion in candidate statements
of references to rival candidates breaches neither the First
Amendment nor the Equal Protection Clause of the 14th Amendment.
In the 1990 elections, Monterey Municipal Court Judge William
B. Burleigh sought to unseat a judge of his county’s Superior Court, Richard
M. Silver. He filed this candidate statement:
STATEMENT OF CANDIDATE FOR
JUDGE OF THE SUPERIOR COURT OFFICE #2
6 YEAR TERM
(NAME) WILLIAM B. BURLEIGH AGE: 55
OCCUPATION: JUDGE OF THE MUNICIPAL COURT
EDUCATION AND QUALIFICATIONS:
After 17 years as Municipal Court Judge, I am challenging
the incumbent Superior Court Judge (Jerry Brown appointee)
Because, as a citizen, I am greatly disturbed by his decisions.
Criminal activity is being dismissed. Innocent
citizens have had their lives and businesses disrupted by court interference.
A police officer was told the defendant (a convicted murderer
on parole) was selling drugs from his camper. When confronted, he attempted
to hide the drugs and the officer seized them. Judge Silver dismissed
the case. (Reversed on appeal.)
Defendant and victim were fighting. Defendant was losing,
left the scene, returned with a knife, stabbed the victim, chased him into
the street and killed him. Silver ruled there was no malice.
Marina Safeway, losing $20,000 a month, announced it was
closing. Silver ordered Safeway to remain open.
It's time to get tough with criminals ... time
to end court interference in community affairs.
ENDORSED BY POLICE CHIEF'S [sic] ASSOCIATION
U.S. Marine Corps.
Doctor [of] Jurisprudence. University [of] California,
Nine years private practice; City Attorney.
Vice-President, California Judge's [sic] Association.
Founder, two charity fundraisers (Big Sur Marathon,
River Run) raising money for local needy services.
The registrar of voters, rather than barring the statement,
sought declaratory relief, asking the court what to do. Burleigh brought
a cross petition for a writ of mandate seeking to compel inclusion of his
statement in the Voter’s Pamphlet, asserting the unconstitutionality of
§10012.1. The trial court found that the statement violated the code
section, and that the section was constitutional. Rather than disallowing
the statement, it exercised equitable powers by excising from it the objectionable
portions and directing publication of the balance.
The Sixth District Court of Appeal reversed on First Amendment
grounds, and the Supreme Court granted review. In an opinion by Justice
Stanley Mosk, a unanimous Supreme Court upheld the constitutionality of
the statute and reinstated the judgment of the trial judge. Although the
election had already been held, the court decided the issues because, it
explained (at 481), "they are of general public interest and likely to
Rejecting a First Amendment challenge, Mosk agreed with
Burleigh (at 482) that a candidate’s statement implicates free-speech rights,
but pointed out (at 489) that a candidate statement is a non-public forum,
in connection with which regulations of speech need only meet a test of
reasonableness (at 483).
Mosk said at 493-94:
Elections for local judicial offices are normally low-profile
events. They are frequently uncontested; even if contested, they usually
arouse minimal public interest. The voters have little knowledge of the
requirements of the job and still less of the qualifications of the candidates;
in turn, the candidates frequently have neither the inclination nor the
time to inform the voters by means of a traditional political campaign,
and in any event may lack the means of doing so—e.g., campaign staff, fundraising
committees, media advisers, and so on. To help fill this informational
void the Legislature created the statutory candidate's statement. From
its terms and conditions we may reasonably infer that its primary purpose
is to give the voters at least a minimal amount — 200 words' worth — of
basic information about the background and qualifications of little-known
candidates. In light of that purpose it is plainly reasonable for the Legislature
to provide in section 10012.1 that the statement should not also be used
by the candidates as a partisan campaign device to attack their opponents.
First, to so misuse a statutory statement could well impair its effectiveness
in a number of ways. The voters could be distracted or confused by the
mixed messages contained in the statement; the statement is necessarily
so brief that to the extent a candidate devotes it to attacking others
it would convey even less factual information about the candidate's own
background and qualifications; and because these statements remain confidential
until they are published..., all such candidates would have an incentive
to misuse them by attacking their opponents in order to avoid the possibility
of unanswered attacks by others in the same forum.
Second, section 10012.1 restricts only this one channel
of communication with the voters; there remain substantial alternative
channels open to candidates for local judicial office that do not bar criticism
of opponents—e.g., advertisements or interviews in local newspapers or
on local radio and television programs, direct mailings to the community,
neighborhood distribution of handbills, and personal appearances at local
functions. Although such channels may not be as simple and convenient to
use as the candidate's statement, they are not ipso facto constitutionally
inadequate; indeed, they may well have much greater impact on the voters.
The candidate must in any event use such channels to convey any portion
of his or her message that exceeds the prescribed limit on the number of
words allowed in the candidate's statement; the same candidate may also
use the same channels to convey any portion of his or her message that
exceeds the prescribed limit on the content of that statement.
We do not and need not go so far as to hold that attacks
on opposing candidates are wholly incompatible with the purposes of the
statutory candidate's statement....On the two grounds discussed above,
the Legislature's decision to limit the statutory candidate's statement
to a brief factual statement of the candidate's own background and qualifications
is at least reasonable. The governing decisions of the United States Supreme
Court ask no more.
Burleigh also challenged the statute on an equal protection
ground, pointing out that it does not similarly restrict nonjudicial candidates.
Mosk responded (at 496):
Here, as we have seen, Judge Burleigh did not have a
fundamental right to attack Judge Silver in this nonpublic forum. The statute's
prohibition against such attacks will therefore be upheld if it is rationally
related to a legitimate state purpose. For the reasons explained above,
we conclude that the restriction is rationally related to the Legislature's
legitimate purpose of assisting the voters by providing them with basic
information about the background and qualifications of little-known candidates
for local judicial office. Section 10012.1 does not violate the equal protection
Footnote 17 has been invoked in proceedings challenging candidate
statements where mere puffery was in issue. It reads:
Like all statutes, section 10012.1 should be reasonably
construed in light of its purpose. For example, if a candidate were to
assert in a statutory statement that "I am the best candidate for the office,"
the implied comparison with other candidates might be deemed to indirectly
"refer" to them but could not reasonably be read to attack them. Accordingly,
the statute should not be construed to bar such a statement.
COMMENT: An issue not before the Supreme Court was the
appropriateness vel non of the trial judge’s order, issued pursuant
to its equitable powers, that the inappropriate portions of the candidate
statement be excised and the balance of the statement be printed.
The opinion recites that the trial court denied writ Burleigh’s
writ petition. Thus, it is assumed the order was issued in connection with
the registrar of voters’ action for declaratory relief pursuant to Code
of Civil Procedure §1060. Although that section is in Part 2 of the
Code of Civil Procedure, dealing with general civil actions at law, it
has been held that the section does relate to an action in equity. Rolapp
v. Federal Bldg. & Loan Assn. (1936) 11 Cal. App. 2d 337; Hollenbeck
Lodge (486) I.O.O.F. v Wilshire Boulevard Temple (1959) 175 Cal. App.
2d 469. Accordingly, the trial court was vested with equitable powers.
However, equitable powers, though broad, do not include
the power to circumvent legislation. Former §10012.1 provided: "The
clerk shall not cause to be printed or circulated any statement which the
clerk determines is not so limited or which includes any such references"
to opposing candidates. (Present §13308 says: "The elections official
shall not cause to be printed or circulated any statement which the elections
official determines is not so limited or which includes any reference prohibited
by this section.")
The idea is that a judicial candidate either comply with
the strictures, or that candidate’s statement be bounced. This would seem
to leave no room for the exercise of equitable powers, pursuant to some
unarticulated equitable precept, to allow the publication of a statement
after snipping from it portions which contravene the statutory requirements.
Certainly, there would appear to be no authority for doing
what trial-court judges have often done in writ proceedings in recent years:
allowing candidate statements to be fixed (re-worded) after portions have
been declared violative of §13308. Sec. 13307(a)(3) expresses the
Legislature’s determination that statements, once filed, not be subject
to alteration. It provides: "Except as provided in Section 13309, the statement
may be withdrawn, but not changed, during the period for filing
nomination papers and until 5 p.m. of the next working day after the close
of the nomination period." Emphasis added.
This is an issue in need of appellate-court resolution.
B. Free Mailings Mackey
v. Panish (1980)
A statutorily authorized policy of a county requiring pre-payment
by a candidate of the cost of publishing his or her candidate
statement in the Voter’s Pamphlet does not violate the Equal Protection
Then-Los Angeles Municipal Court Judge Malcolm
Mackey fn. 2
(now a member of the Superior Court) was pitted against another Municipal
Court judge, John Stanton of the Alhambra Judicial District, in a contest
for a Superior Court open seat in the 1980 primary election. Mackey contended
that the policy adopted by the Board of Supervisors requiring prepayment
of the cost of disseminating a contestant’s "candidate statement" in the
booklet accompanying the sample ballot was unconstitutional as a deprivation
of equal protection. That policy was authorized by statute, Elections
Code §10012 (now §13107), which provided:
"The local agency may estimate the total cost of printing,
handling, translating, and mailing the candidate's statements filed pursuant
to this section, and may require each candidate filing a statement to pay
in advance to the local agency his or her pro rata share as a condition
of having his or her statement included in the voter's pamphlet."
In rejecting the constitutional challenge, the Court of
Appeal, in an opinion by then-Justice Lynn Compton of the Second District’s
Div. Two, said at 12-13:
We are aware that $17,000 is a substantial sum of money
and we assume that in the other large counties the fees are also substantial.
As a consequence there may be worthy candidates who are unable or unwilling
to raise such sums.
That may be a policy matter of concern to the Legislature
but it is not a sufficient basis for declaring a legislative enactment
to be in violation of the Constitution, nor is it a cogent reason for requiring
a local agency to subsidize or extend credit to a nonindigent for what
is essentially a campaign expense when other forms of campaign promotion
cannot be so financed. We find that the present statute and the procedure
in Los Angeles County meet constitutional requirements.
Compton, at 11-12, quoted the California Supreme
Court’s observation in East Bay Municipal Utility Dist. v. Appellate
3(1979) 23 Cal.3d 839,
845, that the concept of "[a] ‘free election’ does not mandate a free
ride from all election campaign expense...."
Mackey was cited by the San Francisco registrar
of voters in support of a local requirement that proponents of local ballot
measures pay a fee for publication of a ballot statements. The First District
Court of Appeal struck down that requirement in Gebert v. Patterson
(1986) 186 Cal.App.3d 868, 878. Harmonizing its ruling with Mackey,
the court pointed out in a footnote that Mackey, unlike the petitioner
in the instant case, was not an indigent. "Moreover," the court added,
"the prepayment scheme at issue…[in Mackey] contained a waiver provision
for indigent candidates."
v. Olson(1984) 153 Cal.App.3d 1189
candidate whose paid statement was published in the primary election Voter’s
Pamphlet is entitled to a free statement in the general election Voter’s
Pamphlet where the results of the primary election were judicially nullified.
West Orange County Municipal Court Judge Joanne Harrold,
an appointee, gained election to her post in the June, 1982 primary election.
The election was judicially nullified based on Harrold having filed a false
declaration of candidacy. (As shown by the statement of facts in Pierce
v. Harrold (1982) 138 Cal.App.3d 415, which upheld the invalidation
of the election, the judge falsely claimed residency in Orange County when,
in truth, she was a resident of Riverside County.)
The court, in proclaiming the election a nullity, ordered
that the names of Harrold’s two challengers in the primary, attorneys Dan
Dutcher and Ronald Nix, be placed on the November ballot.
Each of those candidates had paid for a candidate statement
which was published in the Voter’s Pamphlet in the June primary. Each wanted
a statement in the general election Voter’s Pamphlet, and Dutcher thought
the candidates should have it provided free. He brought an action in the
Orange Superior Court and obtained a writ of mandate ordering the registrar
of voters to include statements from him and Nix at no charge.
The registrar appealed, and lost. Justice Thomas Crosby
wrote the opinion for the Fourth District’s Div. Three affirming the judgment.
On appeal the county counsel argues a candidate might
be entitled to a free statement only if the second election is required
due to errors "directly attributable" to the registrar and contends the
ruling in Pierce v. Harrold exonerates his office in this case.
From these premises he concludes Dutcher and Nix must underwrite the second
candidate's statement. We believe this to be a non sequitur. The question
is better posed as follows: As between the candidates and the county, who
should bear the burden of attempting to recoup the expense of printing
and distributing new statements for the second election from the party
at fault? Although the county is "innocent," we see little justice in rewarding
a public service with a second billing.
The June election was declared a nullity "in fact and
in law." (Pierce v. Harrold, supra., 138 Cal.App.3d 415, 434.) "Nullity"
has been defined as "... an act or proceeding in a cause which the opposite
party may treat as though it had not taken place, or which has absolutely
no legal force or effect." (Black's Law Dict. (5th ed. 1979) p. 963, col.
1; italics added.) The practical and legal upshot of Pierce can be viewed
as a finding the June election did not occur. But the candidates filed
statements for distribution in that election and paid their pro rata share
of the costs under section 10012, which required the county to include
the statements in the voter's pamphlet. It is of no consequence the statements
actually appeared; distribution of candidate's statements for an election
which is not held through no fault of the candidates can hardly satisfy
the registrar's statutory duty under section 10012. In our view, the court's
order did not give Dutcher and Nix anything in the November election they
were not already entitled to receive. That a promissor is prevented from
rendering effective performance by the acts of a third party does not relieve
the obligation where it is still possible to perform.
Crosby added that the statute gave the county the power to
bill candidates for publishing their statements, but did not impose upon
them the obligation to do so. He wrote (at 1193): "We hold only that discretion
to bill once is not the same as the right to bill twice for the same service."
COMMENT: The county hardly sought to bill twice for the
same service. It billed once for the service it performed by publishing
the statements in the Voter’s Pamphlet in the primary; it sought to bill
a second time for publishing new statements in the Voter’s Pamphlet for
the general election. The fact that the election results were nullified
does not mean that the statements in the primary were not published. They
were published, at a cost to the county, which the candidates contractually
agreed to assume.
Crosby frames the issue this way: "As between the candidates
and the county, who should bear the burden of attempting to recoup the
expense of printing and distributing new statements for the second election
from the party at fault?" The party at fault was Harrold. This, the inquiry,
to Crosby’s way of thinking, is: who should have to front the money and
then sue Harrold to recoup it?
The fact that a cause of action would lie against Harrold
is wholly extraneous to the issue before the court: who should bear the
cost of publishing the statements in the general election Voter’s Pamphlet?
The county fully performed in the primary by publishing the statements
for that election. To shift the expense of publishing the new statements
to the county is nothing other than imposing the burden on the party with
the deep pockets, without regard to that party’s lack of fault.
Crosby remarked that "we see little justice in rewarding
a public service with a second billing." The public service would be the
action to nullify the primary election. Drutcher brought an action to do
that. Nix didn’t. What justice is there in rewarding Nix with a free statement
in the general election when it was Drutcher who performed the public service?
If recompense for performing a public service were appropriate,
it should be under the private attorney general doctrine. If such fees
are unavailable (as they would seem to be since Drutcher was seeking
to vindicate personal, not public interests), the court should not use
a back-door approach to reward the party conferring the benefit, along
with rewarding his rival candidate for sake of even-handedness.
The holding of the case is that if a candidate pays for
a candidate statement in the primary and the election is nullified, the
candidate gets a free statement in the general election. This happened
in two Municipal Court open seat contests in Los Angeles County in 1988.
In each contest, candidates spent money on candidate statements in the
primary; the incumbent retired; the elections were held; pursuant to Government
Code §71180, the contests were postponed to November and the results
of the primary election were not tallied. The procedure was approved in
Cathey v. Weissburd (1988) 202 Cal.App.3d 982, discussed in the
fourth article in this series. The Court of Appeal suggested that the Legislature
provide for free statements for candidates in the general election under
those circumstances. The court ignored the inequity of imposing the financial
burden on the taxpayers when it was the candidates who ran with heedlessness
of the legal consequences of the incumbents retiring before the primary,
as at least one of them had announced an intention of doing. The court
also apparently ignored Dutcher which would have provided authority for
the relief it thought appropriate.
In Footnote 6, Crosby mentions:
Dutcher contends the county is partially at fault, since
it successfully opposed an election eve writ proceeding brought by Dutcher
and Nix to remove Harrold's name from the ballot on the basis it would
disrupt the election. Fortunately, there is no need to wrestle with this
This would seem to be a somewhat disingenuous argument on
Dutcher’s part. The county understandably resisted an eleventh hour bid
for relief that would have created turmoil. Dutcher knew from the start
of the election who his opponent was. A simple records search would have
revealed the very matters upon which he relied in causing the election
to be nullified after the fact — such as Harrold’s voting address being
in Riverside (information then publicly available). Had Dutcher and Nix
done their homework at the outset, Harrold could have been disqualified
as a candidate before the election. This is not only an instance
of shifting a burden to an innocent party, but is a circumstance of shifting
it from a party who is the creator of the burden.
Voting with Crosby were Presiding Justice John Trotter
and Justice Sheila Sonenshine.
v. County of Los Angeles (9th Circuit, 1990) 894 F.2d
statutorily authorized policy of a county requiring pre-payment by a candidate
of the cost of publishing his or her candidate statement in the Voter’s
Pamphlet does not violate the First Amendment.
Then-Los Angeles Municipal Court Judge Leon Kaplan was locked
in an election battle with another member of the same court, Alban I. Niles,
in a Superior Court open-seat race on the June, 1986 ballot. Kaplan wanted
a free candidate statement, and took an approach different from Mackey’s
by bringing suit in a federal court. U.S. District Court Judge Dickran
Tevrizian Jr. of the Central District of California rejected Kaplan’s challenge
to §10012, and four years later, the Ninth U.S. Circuit Court of Appeals
Writing for a three-judge panel, Judge Proctor Hug rejected
Kaplan’s contention that the requirement of pre-paying the estimated pro
rata cost of publishing the Voter’s Pamphlet as a condition to having a
candidate’s statement appear in that pamphlet abridged the First Amendment
right of free speech. Hug said at 1079:
The candidate’s statement clearly occupies a privileged
place in the domain of First Amendment protections.
The question then becomes whether access to expression
of these statements in the voter’s pamphlet can be restricted by the advance
payment of costs.
Because the statute is content-neutral, Hug said, strict
scrutiny does not apply, and the issue is whether the statute serves a
significant state interest. Finding that it does, he wrote at 1081:
The state’s interest in publishing voter’s pamphlets
in a way that does not burden local agency budgets is a substantial interest.
The statute is narrowly drawn in that the local agencies can recover actual
costs alone, and cannot profit from the publication charges nor finance
election costs with them. The statute exempts the indigent from cost liability
and leaves open a variety of alternative means for a candidate to transmit
his statement to voters. In light of these factors, we deem the cost recovery
system constitutional under the First Amendment.
Kaplan also assailed the statute on an equal-protection basis.
The state, he averred, was discriminating among candidates based on their
wealth. He relied on two recent U.S. Supreme Court cases which struck down
state statutes which conditioned candidacy for office on the payment of
a filing fee, thereby denying the right to seek office to the indigent.
Those cases, Hug said, are inapposite, explaining at 1082:
A candidate who does not place a statement in the voter’s
pamphlet, thereby entirely avoiding the cost recovery system, will still
appear on the ballot. No candidate is excluded from being listed on the
ballot by virtue of the cost recovery system.
While losing his litigation, Kaplan did succeed in capturing
the Superior Court seat. Niles is again a candidate for the upper trial
bench in this year’s election, vying with Los Angeles Municipal Court Judge
Abe Khan for an open seat.
v. Weisburd (1992) 2 Civ. No. B065406
requirement of one county of pre-payment of the cost of publishing candidate
statements in the Voter’s Pamphlet does not constitute an equal protection
violation on the basis of other counties publishing such statements free.
Deputy Attorney General Robert Henry was one of three challengers
to then-Los Angeles Superior Court Judge Joyce Karlin, under fire for her
probation-sentencing of a Korea-born storekeeper who fatally shot a young
black girl she suspected of shoplifting. Henry petitioned in the Court
of Appeal for a writ of mandate to compel the free publication of his candidate
statement assailing Karlin for her sentencing decision. By now, the price
Henry asserted in his
petition that he was denied equal protection because candidates in some
other counties, such as San Francisco, were not charged for publication
of their statements. He said at Pages 15-16 of his writ petition:
"While past attacks on this statute on grounds of Equal
Protection have concentrated solely on an intra-county perspective,
i.e., the statute was attacked on the basis that it discriminated vis-a-vis
candidates in the same race, petitioner here launches an inter-county
comparison and contends there is no rational basis for the state, as a
whole, to discriminate between the different counties."
Henry’s proposition was novel: that candidates for non-partisan
office in Los Angeles County are a cognizable class the members of which
must be granted any right any other county sees fit to confer upon those
who seek office in that county. The legal proposition was as faulty as
Henry’s candidate statement, which impermissibly attacked a rival candidate.
The writ petition was filed on March 16, and three days
later, Div. Five issued an order summarily denying the petition. Karlin,
who did have a candidate statement in the Voter’s Pamphlet, won in the
primary (and has since retired).
III. NEED FOR LEGISLATION
Elections Code §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)."
There is no case law discussing this section, enacted
in 1994, or its predecessor, §29451, enacted in 1982. The absence
of case law reflects the absence of actions instituted under this section
— which is understandable in light of the paltriness of the potential fine
and a natural reluctance of city attorneys to get involved in election
Monetary disincentives to engage in election deception
would clearly be in the public’s interest. Elections Code§13314,
which authorizes actions in mandate in connection with ballot statements
and ballot designations, could be amended to permit a judge hearing such
disputes to impose on the maker of a false statement a "money sanction,"
payable to the county in an amount not to exceed $1,500. This would be
patterned after Code of Civil Procedure §177.5, which authorizes imposition
of money sanctions for violations of lawful court orders.
An action under §13314 may
be instituted by "[a]ny elector." However, it is nearly always the rival
candidate who institutes the action. The attorney fees can be meaningful
to campaign committees which typically draw heavily on funds from the
candidates themselves. Too, statutory authorization for imposition of
sanctions, payable to the prevailing side in the amount of its attorney’s
fees, would inject fairness in the process. It would spare candidates
who must go to court to block improper matter in a rival’s candidate
statement (or to block an improper ballot designation) from having to
suffer diminution of his or her financial resources on account of that
effort. Likewise, it would spare candidates whose statements (or ballot
designations) were assailed without legitimate bases (a less frequent
occurrence) from having to foot the bills from their attorneys who fought
off the effort.
Aside from fairness
to the candidates, it would promote fairness to the public. It would
have a deterrent effect on candidates placing false or otherwise improper
matter in their candidate statements, thus serving the public’s interest
in having only accurate and pertinent information appear in the Voter’s
Pamphlet. It would discourage unmeritorious courtroom assaults on candidate
statements, sparing courts (and taxpayers who fund them) needless utilization
of their resources.
Proposition 208, enacted by voters in November, would have conferred free
candidate statements on those contenders who agree to voluntary spending
limits. However, on Jan. 6, U.S. District Court Judge Lawrence Karlton
of the Eastern District of California blocked implementation of the measure.
There is no stay in effect pending appeal, so this year’s elections will
not be affected.
. This was Mackey’s second loss in the Court of Appeal in connection
with a candidate statement. In 1967, as a candidate for the Los Angeles
City Council, he gained a writ of mandate in the Los Angeles Superior
Court ordering the city clerk to provide him with a form on which to
state his qualifications. On appeal, however, Div. One of the Second
District Court of Appeal, in an opinion by Justice Mildred Lillie, held
that the City of Los Angeles, as a chartered city, could not be compelled
to publish candidate statements. Mackey v. Thiel (1968) 262 Cal.App.2d
In that case, the Supreme Court held that although the statute did not
authorize counties to impose a pre-payment requirement on candidates
(Knoll v. Davidson (1974) 12 Cal.3d 335), the counties could
sue the candidates if they didn’t pay. Subsequent to the decisions in
Knoll and East Bay, the statute had been remedied to authorize a pre-payment
It is nearly always a rival candidate who institutes an action challenging
a candidate statement or ballot designation. However, an action under
§13314 may be instituted by “[a]ny elector.” Loza v. Panish
(1980) 102 Cal.App.3d 821, summarized above, involved an action
brought by a non-candidate. There is no reason to deny attorney fees
to a person, if he or she prevails, who has acted in the capacity of
a “private attorney general.” Indeed, such a person could, under existing
law, seek attorney fees under the private attorney general statute,
Code of Civil Procedure §1021.5. It would appear that a candidate
could not recover under that statute inasmuch as the purpose of the
action would be to advance his or her own interests, not those of the
public. Citizens Against Rent Control v. City of Berkeley (1984)
181 Cal.App.3d 213. Nonetheless, one judge did make such an award to
a judicial candidate who successfully challenged an opponent’s candidate
statement. Metropolitan News-Enterprise, Oct. 14, 1994, Page
1, “Freedman Ordered to Pay $12,000 to Morality’s Lawyer.” Return