Feb. 23, 2000
Two of the candidates for the Los Angeles Municipal Court open seat on the March 7 ballot, Los Angeles Superior Court Commissioner John Slawson and private practitioner Vicki Roberts, have intriguing approaches to legal interpretation.
As Slawson reads judicial canons, he's not allowed to comment negatively on his election opponents.
As Roberts understands a Los Angeles County Bar Assn. guideline, a judicial candidate is precluded from garnering endorsements from judges. While her misreading of the guideline leads to a faulty conclusion, her discussion does point to a significant flaw in the guidelines.
I'll start with Slawson and talk about Roberts tomorrow.
First, a reminder. In considering the qualifications of these two candidates—as well as their opponents, Deputy District Attorneys David Mintz and David Stuart, Commissioner John Ladner, and attorney Ronald Silverton—it must be borne in mind that while the contest is labeled on the ballot as one for the municipal court, it isn't. In light of unification, the victor will be elected to a judgeship on the Los Angeles Superior Court, intensifying the need for scrutiny of the candidates.
On Dec. 17, Slawson met with our editorial board and a reporter. He was asked about his rival candidates. The commissioner said he couldn't talk about them because a canon precluded him from doing so. I asked if he would supply a copy of that canon, and he agreed to do so. Naturally, he didn't because no such canon exists (and certainly could not withstand constitutional scrutiny if it did). An article on the race, which appeared Jan. 20, noted: "In actuality, Canon 5(B)(2) provides that a judicial candidate shall not 'knowingly misrepresent the identity, qualifications, present position, or any other fact concerning...his or her opponent'; neither that canon nor any other canon proscribes any discussion whatsoever of the opponent."
The candidate made a misstatement. Rather than acknowledge the error, he said this in a follow-up e-mail:
"The Canons that I believe would be applicable would be Canon 1 and Canon 5. Also Elections Code 13308 provides guidance on the issue. That Code is set forth below.
" 'Elections Code 13308. In 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.'"
"Regardless of the legal interpretation of the Canons, the Statute, and any guidelines on the ethics in a judicial election, I believe that each candidate should campaign by informing the voters of their qualifications rather than emphasizing any deficiencies of their opponents. This conduct should be followed in campaign material, speaking engagements or while disseminating any other campaign information."
On Dec. 17, Slawson took the position that he couldn't talk about his opponents, period, and did not mention the statute. In any event, neither the canons he has now cited nor the statute supports the position that he is precluded from criticizing opponents. While this might be, as expressed in the final paragraph quoted above, his preference, that's a different matter from being under a supposed legal mandate.
Canon 1 reads as follows: "An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective. A judicial decision or administrative act later determined to be incorrect legally is not itself a violation of this Code."
The general language in that canon has never been interpreted to require, and I submit cannot reasonably be construed to require, that a judicial candidate abstain from any criticism of another candidate. Canon 5 only forbids lies about other competing candidates—not remarks that are truthful or uttered in the good-faith belief they are so.
Elections Code Sec. 13308 has nothing to do with ethical strictures. It merely prescribes the format for candidate statements that are placed for publication in the Voter's Pamphlet. It does not purport to dictate the content of ads placed elsewhere, campaign materials, or statements which may be made to editorial boards.
Judges should be possessed of intellectual honesty, willing to acknowledge when they have erred. The right of a litigant to move for reconsideration, upon a proper showing, has no meaning where the judge is incapable of recognizing that he or she is not infallible. Slawson's rationalization of the erroneous statement he made during the interview is sadly reflective of qualities one would hope not to find in a judicial officer.
Slawson's assertion in his candidate statement that he is a "law professor" is unsupportable. A "law professor" or "professor of law" is, as those interchangeable terms are commonly understood, a professor at a law school. Slawson is not a professor at a law school. He teaches legal topics to paralegals and law enforcement officers at a two-year community college.
In his e-mail, Slawson wrote:
"In reaching my decision on the use of each and every of the 200 words allowed in the Ballot Statement, including the words 'Law Professor,' I considered many sources of information. The specific court cases that I referred to in our discussion were the Murphy and Andal v. Miller cases. I also relied upon the opinion of Attorney Bradley W. Hertz, the advice of my campaign consultant Cerrell Associates Inc. and the discussions of the issue with students, fellow teachers, attorneys, friends and family.
"The purpose of this letter is not to attempt to convince you that my choice of words on the Ballot Statement was appropriate, because it is obvious to me that your opinion on this issue will not change. I have found that you are very well versed on the subject of election law and the court cases dealing with ballot challenges. However, in my defense I must say that I have not attempted to mislead the voters as to my experience and ability to serve as a judge.
"I believe that if the legislature had written Elections Code Section 13307 with language that required candidates to state their occupation with the specific job title in the technical language as used by their employer; the ballot designation of 'Trash Collector' would be improper for a 'Refuse Collector Technician', the designation of 'Child Care Provider' would be improper for a 'Part-time Nursery School Assistant', and the designation of 'Weatherman' would be improper for a 'Meteorological Broadcast Specialist'.
"I agree that the El Camino College Personnel Department's designation of my position is that of 'Lecturer', however, I do not believe that my choice of words is misleading to the voters. I chose not to use the term 'Law Professor' or 'Professor' in my three word Ballot Designation because it is not my principal occupation. I believed that it is not improper in the Ballot Statement since I could state that I taught evening classes and due to the generic use of the term for a person who teaches law at an institution of higher learning."
The Murphy case to which Slawson alluded was a writ proceeding four years ago, heard by then-Los Angeles Superior Court Judge Diane Wayne. Slawson did not repeat in his e-mail his assertion during the interview that California Rules of Court, rule 977 permits citation to a trial-court decision for its persuasive value. The rule has no such effect. He now refers to the case as a source of information. Rulings in the Writs and Receivers Department, while not citable, do reasonably affect future conduct of non-parties.
Does the ruling in that case place in reasonable light Slawson's reference to himself as a "law professor"? No.
Wayne ruled that Judge Patrick Murphy of the Citrus Municipal Court, then an adjunct professor of law at Glendale College of Law, could refer to himself in his candidate statement as a "professor." She said in her order: "Although he is an adjunct professor the phrase 'law professor' most accurately describes his position."
Wayne's ruling (the correctness of which is questionable) is not on point. The issue there was whether the term "professor" may be used by one who is not a full professor. (That same issue last month was before Los Angeles Superior Court Judge David Yaffe, who ruled that Commissioner Douglas Carnahan could use the word "Professor" as part of his ballot designation—that is, the title appearing under the candidate's name. Carnahan is a colleague of Slawson at El Camino College.)
What was not in doubt in the case before Wayne was that Murphy did teach law at a law school. Slawson does not. Even if use of the word "professor" by a once-a-week instructor can be countenanced, there is nothing in Wayne's ruling that would reasonably lead Slawson to suppose he could call himself a law professor—unless it was simply a conclusion by him that courts do not hold judicial candidates to high standards.
Slawson points to Andal v. Miller (1994) 28 Cal.App.4th 358. The major holding in that case is that the statute restricting a ballot designation to the candidate's "principal" profession, vocation, or occupation precludes reference to some now-and-then activity. That holding is irrelevant to candidate statements inasmuch as the statutes governing those statements do not preclude reference to activities that are not "principal." However, I assume that Slawson is seeking to draw support for his position from a paragraph at 365 which says that a general description of a job, such as "peace officer" or "businessman," may be used in place of the precise title the candidate holds. There is, however, a proviso: "so long as the designation chosen does not mislead the voters." Slawson's title is "lecturer." A generic term would be "teacher," "pedagogue" or "instructor." Under the dubious reasoning of Wayne and Yaffe, "professor" is also a generic term. However, the term "law professor," connoting as it does one who teaches at a law school, plainly violates the admonition in Andal that the designation be one that "does not mislead the voters."
Of relevance is Canon 5(B)(2). That provision not only prohibits the knowing utterance of misrepresentations concerning an opponent, as discussed above, but also forbids misrepresentations by a candidate concerning himself or herself. It declares it to be a disciplinable offense for a judicial candidate to "knowingly misrepresent the qualifications, [or] present position...concerning the candidate." In claiming to be a law professor, when he is not, Slawson ran afoul of that canon.
Of theoretical relevance is an unenforced provision, Elections Code Sec. 18351. It 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)."
Slawson insists he did not intend to mislead voters. However, he did intend to refer to himself in his candidate statement as a "law professor" and he knows that he is not one.
Tomorrow, I'll take a look at a contention by one of Slawson's five opponents, attorney Vicki Roberts.
Copyright, 2000, Metropolitan News Company. All rights reserved.