Friday, March 19, 2010
Page 7
PERSPECTIVES (Column)
Judicial Candidates, AG Aspirants Seek to Use False Ballot Designations
By ROGER M. GRACE
Four candidates in current judicial contests in the county have been playing games with their ballot designations, pretending to be what they’re not. But their attempts at trickery pale in contrast to that of an aspirant for the Republican nomination for attorney general, former Chapman University School of Law Dean John C. Eastman, an academician turned low-down politico.
Assembly member Ted Lieu, a candidate for the Democratic nomination for attorney general, would also appear to be misrepresenting himself.
The four judicial candidates who have sought to bamboozle voters are Los Angeles Deputy City Attorneys Chris Garcia and Tom Griego, as well as Pasadena private practitioner Tony de los Reyes and realtor/lawyer Douglas Weitzman.
The theme of the applicable legal provisions is that candidates are not permitted, through their designations, to fool voters as to what they do for a living.
Elections Code §13107 limits a candidate who is not an office-holder to a ballot designation comprised of “[n]o 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.”
Someone who is an office-holder and who wants to cite an additional principal undertaking is likewise limited to three words.
Literal truth is not enough. Under the statute, election officials must reject a proposed designation if it “would mislead the voter.” That proviso, according to a 1995 Court of Appeal opinion, “seeks to prevent ‘creative’ misuse of ballot designations by candidates.”
California Code of Regulations §20714 elaborates on the statute:
“Each proposed principal profession, vocation or occupation submitted by the candidate must be factually accurate, descriptive of the candidate’s principal profession, vocation or occupation, must be neither confusing nor misleading, and must be in full and complete compliance with Elections Code §13107 and the regulations in this Chapter.”
In other words: Fudging and finagling are verboten.
Attorney General Candidates
JOHN C. EASTMAN was dean of a minor-league law school in Orange County up until he went on a leave of absence on Jan. 28 of this year, in order to campaign. He will, unless barred by a writ, be designated on the ballot as “assistant attorney general.” This implies—falsely—that he is a higher-up in the administration of California Attorney General Jerry Brown.
The truth is that he is not now, nor has he ever been, an employee of our state’s Office of Attorney General.
The rationale for the designation is that he has undertaken to do work on a case which the State of South Dakota hopes will be taken up by the U.S. Supreme Court. Five days before leaving his post as dean, Eastman was appointed as a part-time special assistant attorney general for South Dakota. The word “special,” in that context, is analogous to “pro tem,” as applied to someone acting as a judge.
He is not an “assistant attorney general” here, or in South Dakota.
In his Ballot Designation Worksheet, Eastman argues that “the ballot designation of Assistant Attorney General is literally accurate and is the most accurate description given Section 13107(a)(3)’s three-word limitation.”
Commonly hyphenated words count as a single word. A truthful, yet unglamorous, designation would be “out-of-state temporary attorney.” There are, of course, variations that would comport with actuality. The designation that Eastman has chosen does not.
So sly and dishonest an individual is plainly unfit for public office. Indeed, is such a trickster suited for teaching law students, instilling values in them?
TED LIEU is a full-time member of the California Assembly. He is identified on the ballot as “Military Prosecutor/Lawmaker.”
On his worksheet, he says:
“I am military prosecutor in the U.S. Air Force Reserves where my duties include prosecuting crimes and determining if a law has been broken.”
A campaign consultant, Richard Stapler, says that Lieu spends 30 days a year in the Reserves. As part of his work, he acts as prosecutor in court martials, as well as defense attorney in such proceedings, Stapler says.
Lieu was not available for comment yesterday. However, Stapler talked with him and gained additional information. He says of Lieu, in an e-mail:
“In the past year he spent more than half his duty time working on misconduct issues, including a court-martial case involving an Air Force officer charged with violating provisions of the Uniform Code of Military Justice, which is the military’s version of federal criminal law. He also investigated and recommended action on other cases involving allegations of misconduct.”
Did Lieu actually conduct the prosecution in that one court martial? Stapler responds that Lieu was assigned the prosecution, but “it did turn into a plea deal.”
Lieu might qualify for a designation of “military attorney.” But is he a “military prosecutor”?
Based on handling the seminal stages of a single court martial during the past year, acting as a “prosecutor” could hardly be termed a “principal” occupation.
Judicial Candidates
CHRIS GARCIA’s proposed designation as “Federal Criminal Prosecutor” was torpedoed by the Registrar-Recorder’s Office. The word “federal” was excised.
That made sense given that Garcia’s job title is “deputy city attorney.”
A few members of the City Attorney’s Office, including Garcia, had been detached, for a spell, to the U.S. Attorney’s Office, to help out there. City Attorney Carmen Trutanich, understandably, called them back; in these times of city budget cutbacks, he needs all his deputies.
Garcia, on his worksheet filed with the Registrar-Recorder’s Office, tried to justify the designation by saying:
“From April 2008 through September 2009 I worked at the United States Attorney’s Office as a Special Assistant United States Attorney prosecuting federal felony identity theft and government benefits fraud matters.”
The designation was disallowed, not based on it being misleading—which it is—but in light of CCR §20714(b)(2)(d), which says:
“If the candidate is engaged in a profession, vocation or occupation at the time he or she files his or her nomination documents, the candidate’s proposed ballot designation is entitled to consist of the candidate’s current principal professions, vocations and occupations. In the event the candidate does not have a current principal profession, vocation or occupation at the time he or she files his or her nomination documents, the candidate may use a ballot designation consisting of his or her principal professions, vocations or occupations, which the candidate was principally engaged in during the calendar year immediately preceding the filing of the candidate’s nomination papers.”
Maybe that was a valid basis for scuttling Garcia’s desired designation…maybe not.
Election officials interpret the regulation (which has the force of law) to mean that if a candidate has a present job, he or she may not list a prior position just because it was held within the past year. The awkwardly phrased sentence as to the “ballot designation” being “entitled” to be comprised of the present “principal professions, vocations and occupations” does not restrict a designation to what the candidate is currently employed to do; the word “entitled” is permissive. However, the subsequent sentence in the regulation does at least imply that only if the person is currently unemployed may a job be used that was previously held.
Yet, the statute, itself, does appear to permit use of any position held within the past year, even if the candidate is presently employed in some other line of work. That’s how the Court of Appeal interpreted the statute in 1994. Administrative regulations may elaborate on statutes, but not contradict them.
The designation is, nonetheless, inappropriate because it’s misleading. For Garcia to list himself as a federal prosecutor would be like a Municipal Court judge, back when there was such a court, being listed as a “Superior Court” judge based on a cross assignment to the upper trial bench—or a Superior Court judge being listed as “Appeals Court justice” based on a three-month stint on the Court of Appeal, on assignment.
Garcia received a temporary appointment; he was never hired as a deputy United States attorney.
The candidate advises:
“Technically, I am still a federal criminal prosecutor. My appointment doesn’t terminate until April, 2011.”
That obviously misses the point.
He is not a federal prosecutor. The ballot designation Garcia sought to use is deceptive, and therefore reflects ill on the candidate’s integrity.
TOM GRIEGO is also running for the county’s Superior Court with a vote-attracting ballot designation of “Criminal Prosecutor.”
In his case, it’s misleading.
Griego filed his nomination documents on March 8, claiming the description. I asked Griego: “Have you prosecuted anyone in the last year?”
His answer: “No, I have not.”
To me, that’s a confession as to the invalidity of the designation. If he has not prosecuted criminals (or alleged criminals), he has not been a criminal prosecutor.
Yet, he argues that he was reassigned to the office’s criminal branch (in which he worked from 1994-97) prior to filing his papers, so he’s a “criminal prosecutor.” He declares:
“The code says, ‘What’s your current profession?’ That’s my current profession.”
Actually, under definitions in the administrative code, his profession would be “attorney,” but “criminal prosecutor” would qualify as his occupation—if it were factually accurate.
Griego admits that as of March 8, he in no way even assisted in any prosecution, but had been reading manuals and the like. As he puts it, he was “in the process of transiting” and being “reacclimated to the criminal branch.”
In other words, he was in preparation for the role of a criminal prosecutor. That’s quite different from being a criminal prosecutor.
His job title is “deputy city attorney.” During the one-year period preceding the filing of his papers—except for some time in recent days in the role of a trainee—he handled civil matters.
The ballot designation he has chosen—which so far has not drawn a challenge—is a falsehood.
TONY DE LOS REYES is listed as “Attorney/Hearing Officer.” His designation as “attorney” is unassailable. The propriety of being listed as a “hearing examiner,” on the other hand, is doubtful.
De los Reyes, by his own estimate, devotes only about a dozen days a year to conducting Los Angeles Police Department disciplinary hearings.
He is paid for the work, and clearly it is an occupation. However, though judges in the Writs Department do strange things with some frequency, I don’t see how the designation could weather a challenge on the ground that it is not a “primary” occupation.
DOUGLAS WEITZMAN, who is challenging Judge Soussan Bruguera, is listed as a “public rights attorney.” I don’t know precisely what a “public rights attorney” is, but I would think it would connote an attorney who brings public-interest litigation, that is, private attorney general actions.
In his worksheet, Weitzman explains: “I represent a vast spectrum of members of the public in all types of legal situations,” proceeding to enumerate types of legal work.
Weitzman, running for the third time, is a real estate broker. He says in an e-mail:
“I am actively practicing law now, as well as a real estate broker. I have my own practice, as well as working part-time as in-house counsel for a very large property management and ownership firm in Beverly Hills.
“Most of my practice is transactional, and there are not that many opposing counsel. Mostly I deal with people that have problems with a real estate matter and I deal mostly with non-attorneys.”
How he is vindicating the rights of the public in such a role is difficult to imagine.
Weitzman, by the way, would have the right—at least under a regulation—to refer to himself on the ballot as an “attorney” even if he maintained no law practice. CCR §20714 says:
“If a candidate is licensed by the State of California to engage in a profession, vocation or occupation, the candidate is entitled to consider it one of his or her ‘principal’ professions, vocations or occupations if (i) the candidate has maintained his or her license current as of the date he or she filed his or nomination documents by complying with all applicable requirements of the respective licensure, including the payment of all applicable license fees and (ii) the status of the candidate’s license is active at the time he or she filed his or her nomination documents.”
(But is that an elucidation of the statute or a contradiction to its stricture against a designation that “would mislead the voter”?)
Garcia is seeking Office No. 28; Griego is competing for Office No. 117; de los Reyes is vying for Office No. 107; and Weitzman covets Office No. 35.
Copyright 2010, Metropolitan News Company