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.

[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 requirements.

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."

HOLDING: 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.

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)

WHY?

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.

Some Examples:

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

Qualifications:

U.S. Marine Corps.

Doctor [of] Jurisprudence. University [of] California, Berkeley.

Nine years private practice; City Attorney.

Vice-President, California Judge's [sic] Association.

Faculty, California Judge's [sic] College.

Associate Editor, "California Court's [sic] Commentary"

Founder, two charity fundraisers (Big Sur Marathon, River Run) raising money for local needy services.

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 recur."

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.

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 clause. 

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.

HOLDING: 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 Clause.

"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.

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."

 

Dutcher v. Olson (1984) 153 Cal.App.3d 1189

HOLDING: A 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.

He explained:

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 thorny suggestion. 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.

Kaplan v. County of Los Angeles (9th Circuit, 1990) 894 F.2d 1076

HOLDING: 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 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 affirmed.

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.

Henry v. Weisburd (1992) 2 Civ. No. B065406

HOLDING: The 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 was $64,000.

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 squabbles.

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 fn. 4 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.

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1. 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. Return to text

2 . 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 362.  Return to text

 3. 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 requirement. Return to text

 4. 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 to text