Metropolitan News-Enterprise
March 16 , 1998
Page 6

Klausner Wins in Court, Bach Loses
— Or Is It the Other Way Around?

Retired Los Angeles Superior Court Judge Burton Bach will be charging to the Court of Appeal, asking that it overturn a writ requiring that his preferred ballot designation as a "Retired State of California Judge" be scrapped and that he be listed on the ballot as a "Private Judge."

Bach is seeking to unseat Los Angeles Superior Court Judge Gary Klausner who, three years ago as presiding judge, assigned Bach to sit in Norwalk — an hour-and-a-half drive each way for Bach, who lives in Ontario. Insisting that his heart condition precluded the drive, he resigned, vowing to friends to take Klausner on at the polls.

Klausner's lawyers prevailed Friday before Orange Superior Court Judge William F. McDonald in having Bach's desired ballot designation voided. But was this a win for Klausner?

The firm of Geragos and Geragos, representing Klausner, argued that Bach should not be described as "retired" and that his principal occupation is that of a private judge. But "private judge," a term with which the lay public is not apt to be familiar, connotes that Bach presently acts in the capacity of a judge. This surely is a stronger designation than that of a retiree, conjuring up as it does the image of an old-timer, bored over staying at home, who is challenging a sitting judge.

Klausner said Friday he does not believe the term "private judge" is appropriate because it is merely a colloquial reference to an arbitrator or mediator. However, Klausner's lawyers asserted to the contrary, and the judge can hardly be heard in the Court of Appeal to argue against a writ issued in conformity with his own request.

The writ petition was brought pursuant to Elections Code Sec. 13107 which requires that the registrar of voters reject improper designations. (Registrar-Recorder Connie B. McCormack was the respondent in the action, and Bach was the real party.) The code section restricts designations of non-office-holders as follows:

"No more than three words designating either the current principal professions, vocations, or occupations of the candidate, or the principal professions, vocations, or occupations of the candidate during the calendar year immediately preceding the filing of nomination documents.

"For purposes of this section, all California geographical names shall be considered to be one word."

The argument in the memorandum of points and authorities as to why the ballot designation should be stricken contained three headings:

"A. Real Party Is Not a Retired Judge For Purposes of The Ballot Designation." The argument under that heading was puzzling. Attorney Mark J. Geragos wrote that Bach is still a judge, saying: "[I]t is not clear that real party [Bach] has even 'permanently given up' his chosen profession. He was a lawyer, then a judge. Now, by privately resolving disputes, he continues to work as a judge…." To say that Bach "continues to work as a judge" is to concede that it would be accurate for Bach to list himself on the ballot simply as "judge." If he were so listed, Klausner's advantage of incumbency would shrivel. Despite this curious concession by Geragos, McDonald did not order that the registrar-recorder engage in the absurdity of listing Bach as a "judge." Such would have been violative of the stricture in Sec. 13107(b)(1) against accepting a designation that would "mislead the voter."

"B. Even If Real Party Does Qualify As a Retired Judge, That Is Not His Principal Occupation." The contention there was that being a "retired judge" is merely a status, not an occupation as required by Sec. 13107(a)(3), and that Bach "works as a private judge." Klausner's personal view to the contrary, what Klausner said, through his attorneys, is that the proper description of Bach is as a "private judge."

"C. Even if Real Party Could Properly Describe Himself A Retired Judge, His Designation As It Now Stands Significantly Misleads The Electorate." The point under that heading was that reference to Bach having been a "State of California" judge implies that he held statewide office — that is, was a member of the state Supreme Court or Court of Appeal. The counter-argument is that Bach was a member of the "Superior Court of the State of California," a state court. McDonald agreed with the former contention, and specified that the words "Los Angeles" may, but need not, precede or follow the designation, "private judge."

The top expert in the field of judicial elections, political consultant Joe Cerrell, also sees Friday's development as a plus for Bach. "Why do I want to vote for somebody who's retired?" he asked rhetorically, observing that the word "retired" implies that the person is "old."

"That's not an active person," he remarked.

" 'Private judge,' it's a good title."

Winning is now "doable" for Bach, he said, adding, however, that Klausner "is still the odds-on favorite."

Can the order to list Bach as a "private judge" be reconciled with the holding in Luke v. Superior Court (1988) 199 Cal.App.3d 1360, at 1363? There it was said that "neither a court commissioner, nor any other individual who is not a 'judge,' as that term is defined in the Constitution and statutes of this state, may utilize a ballot designation containing the word 'judge' or a derivative thereof."

In Luke, a court commissioner was barred from using the title "Judge, Los Angeles County (Acting)."

In Andrews v. Valdez (1995) 40 Cal.App.4th 492, use of the title "administrative law judge" was approved. The court noted that, unlike the situation in Luke, this was the actual title of an office as set forth in a statute.

By contrast, no constitutional provision or statute refers to a "private judge." As Klausner notes, it is merely a term used in legal circles.

Bach said Friday he will go to the Court of Appeal seeking to overturn the writ. Just as Klausner would have been well advised to have left Bach's designation as a retiree remain on the ballot, Bach would be well advised to leave well enough alone. If he "won" back his initial designation, he would be worse off. And he would risk the possibility of the Court of Appeal applying Luke, barring use of the designation of him as a "retired judge," and ordering that he be listed as a "mediator/arbitrator."

Any chance he has is tied to having the word "judge" in the designation.

All in all, it was Klausner who lost on Friday, Bach who won.

MISLEADING BALLOT DESIGNATION: A challenge to another candidate's ballot designation, were it to occur, would likely succeed.

Attorney Michael Steven Duberchin of Sherman Oaks has chosen a designation which strikes me as one which "would mislead the voter," contrary to the requirement of Sec. 13107. Duberchin, running for an open seat on the Antelope Municipal Court, describes himself as a "prosecuting civil attorney."

He is a civil practitioner. And, yes, it can be said that a civil practitioner "prosecutes" civil cases, just as a nation may "prosecute" a war.

However, use of the word "prosecute," except in the context of a criminal action, is rare. What is apt to be understood by lay voters is that Duberchin is a prosecutor — putting him on even-footing, so far as a ballot designation is concerned, with another contestant in the race, Deputy District Attorney Steven D. Ogden. (The other contestants are Larry H. Layton, designated as "Arbitrator/Dean/Professor" and Joel Wallerstein, a "Superior Court Referee.")

Election results over the past several years show that a ballot designation as a prosecutor has strength with voters second only to a designation as a judge.

Although Duberchin does describe himself as a civil attorney, the word "prosecuting" comes first and is bound to have a greater impact on voters. It is apt to establish in their minds that he is a prosecutor, leaving them to wonder what the term "civil" is doing there. Does it refer to civil service, meaning he is a career government prosecutor? Does he prosecute toxic polluters seeking civil penalties?

 I passed out a questionnaire to some Metropolitan News Company employees, and one former employee who happened to drop by, asking: 

If a lawyer is a "prosecuting civil attorney," does that person

[ ] Represent plaintiffs in lawsuits?

[ ] Try to get convictions of people for crimes?

[ ] Other ____________________________________


Attorneys were not included in the survey, though paralegals were. Responses of non-voters were discarded.

I was surprised that a majority did not answer that a prosecuting civil attorney seeks convictions. The breakdown was six votes in each of the categories. Those choosing "other" included those who simply didn't know.

One of those answering in the "other" category did envision a prosecutorial function, answering: "Prosecutes people who committed crimes in a civil case."

This survey was hardly scientific. But it does point to the high potential for confusion, with some voters assuming that person with Duberchin's designation is one whose job is to put villains behind bars.

"But aren't I a prosecutor of civil cases?" the candidate queries.

He says he regularly comes into court and announces "I'm prosecuting this claim" or that.

As a civil lawyer, "either I'm a prosecuting lawyer or I'm a defending lawyer," he says, declaring that he is the former since he represents plaintiffs.

It remains that the common designation for an attorney representing plaintiffs is a "plaintiffs' attorney," not a "prosecuting attorney." The latter connotes a government lawyer who presents the case on behalf of the People against a person charged with a crime.

While it well might be that Duberchin does think of himself as a "prosecuting attorney" and chose the designation he did in good faith and with no intent to deceive, it remains that the designation is one which would have a strong tendency to mislead voters. As such, it is subject to challenge by the other candidates in the race, or anyone else inclined to dispute its legitimacy by way of a writ proceeding.

Copyright 1998, Metropolitan News Company. All rights reserved.