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Court of Appeal:
Judge Botched Ballot-Designation Ruling in Judicial Race
Candidate Who Was Disadvantaged by Ruling Was Denied Outright Victory in Primary by Two-Tenth of One Percent
By a MetNews Staff Writer
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LOUGH |
BARAJAS |
A Riverside Superior Court judge failed to adhere to the dictates of two Elections Code sections as well as a Code of Regulations provision in ruling that a candidate for an open seat on his court was entitled to the ballot designation of “Senior Deputy District Attorney,” Div. Two of the Fourth District Court of Appeal has declared.
The name of Deputy District Attorney Amy Barajas did appear on the June 7 primary election ballot with the designation authorized by Judge Daniel A. Ottolia, but won’t appear that way on the Nov. 8 general election ballot, under an unpublished opinion filed Friday. If Barajas has any designation—none is required—it will have to include the name of the county and omit the word “Senior,” the appeals court held.
Justice Marsha G. Slough wrote for the panel in directing that the Superior Court vacate Ottolia’s April 19 order requiring that the county’s registrar-recorder use the disputed ballot title.
Error ‘Is Clear’
The error on Ottolia’s part, Slough said, “is clear.”
Barajas has until Wednesday, under Slough’s opinion, to accept a ballot designation that conforms to statute—“County of Riverside Deputy District Attorney”—or have her name appear on the Nov. 8 general election ballot with no job description under it.
The writ of mandate issued on Friday was sought by Riverside County Registrar of Voters Rebecca Spencer and by the office she heads.
Benefitting from the decision is Deputy District Attorney Natalie Lough, Barajas’s opponent in the run-off. In the primary, Lough came within a hair of winning outright; she had 49.8 percent of the vote, Barajas attracted 28.2 percent of the ballots, and 22 percent of those casting ballots favored attorney Richard Swanson.
Benefit Provided
By allowing an identification of Barajas as a “senior” deputy district attorney, Ottolia conferred an advantage on her, Slough said, pointing out that the word “senior” is “a laudatory adjective that suggests evaluation of the candidate’s qualifications.”
That, the jurist pointed out, violates Elections Code §13107(e)(2) which bans designations that “would suggest an evaluation of a candidate, such as outstanding, leading, expert, virtuous, or eminent” and 2 Code of Regulations §20176(e) which mirrors the statute and elaborates upon it, setting forth that “impermissible adjectives include, but are not limited to, ‘senior’.”
Slough continued:
“The designation is also potentially misleading in violation of Elections Code section 13107, subdivision (e)(1), because it implies that Barajas has more experience than her opponent, another Deputy District Attorney, which may or may not be the case.”
Barajas was admitted to the State Bar on June 1, 2005, joining the District Attorney’s Office that year; Lough was licensed on Dec. 4, 2006, and became a deputy district attorney the following year.
Name of County
Ottolia’s April 19, 2022 order to the registrar of voters also contravenes Elections Code 13107(b)(3), Slough declared, “because it does not include Riverside County.” That portion of §13107 says:
“If the candidate is an official or employee of a county, the name of the county shall appear preceded by the words ‘County of.’ ”
(The section would permit a designation of “Deputy District Attorney, County of Riverside,” as well as that prescribed in the opinion. In Los Angeles County, the county’s name typically is placed after the job title.)
‘Gang Homicide Prosecutor’
The designation Barajas sought in the papers she filed in Spencer’s office was “Gang Homicide Prosecutor.” Under amendments to §13107 which became effective Jan. 1, 2018, such designations are barred.
In explaining the purpose of his 2017 bill, SB 235, state Sen. Ben Allen, D-Los Angeles, said that “certain candidates for judicial office have chosen designations that emphasize and indeed exaggerate their purported experience in punishing criminals, so as to demonstrate that they are ‘tough on crime,’ ” and among the designations he expressly slammed as “[d]isingenuous and histrionic” was “Gang Homicide Prosecutor.”
Sec. 13107(b), added by SB 235, provides:
“(2) For a candidate for judicial office who is an active member of the State Bar employed by a city, county, district, state, or by the United States, the designation shall appear as one of the following:
“(A) Words designating the actual job title, as defined by statute, charter, or other governing instrument.
“(B) One of the following ballot designations: ‘Attorney,’ ‘Attorney at Law,’ ‘Lawyer,’ or ‘Counselor at Law.’ The designations ‘Attorney’ and ‘Lawyer’ may be used in combination with one other current principal profession, vocation, or occupation of the candidate, or the principal profession, vocation, or occupation of the candidate during the calendar year immediately preceding the filing of nomination documents.”
Barajas Seeks Writ
Despite that language, Barajas sought a writ in the Riverside Superior Court ordering Spencer to accept the designation of “Gang Homicide Prosecutor.” Ottolia was not persuaded to grant the relief that was sought, but did acquiesce in the argument that because Barajas is a high-ranking “Grade IV” deputy, she is entitled to use the word “Senior.”
On June 16, Spencer and her office sought a writ of mandate. Although represented by former District Attorney Rod Pacheco, Barajas, as “real party in interest,” did not file a brief.
While finding that Ottolia’s ruling defied §13107, Slough did not discuss whether it additionally ran afoul of subd. §(b)(2)(A) by not reflecting the “actual job title.”
Lough Comments
Lough commented:
“Voters deserve transparency and clarity in the designations they see on their ballots. I respect the court’s action to prevent voters from being misled as they exercise their right to have their voice heard.”
Barajas remarked:
“My goal from the beginning has been to ensure transparency to the voters so that they understand who they are electing. I have worked as a Senior Deputy District Attorney for many years. Currently I work as a gang homicide prosecutor, who has been the lead attorney in numerous violent criminal prosecutions throughout my career. My opponent whom [sic] will have the same title on the ballot, lives outside the county and has a very different background with significantly less lead attorney trial experience.
“It is from those years of frontline trial work in our community that I gained the endorsements and trust of over three dozens superior court judges including the presiding judge and the presiding Justice of the court of appeal. These trusted leaders know what it takes to be an excellent judge and they know from watching me work everyday for the last 17 years that I am the best candidate. From the beginning I’ve always wanted the people to know the truth about our background and career experience as they vote for their next judge.”
The case is Spencer v. Superior Court, E079205.
Presiding Justice Manuel A. Ramirez and Justice Richard T. Fields, who have endorsed Barajas, did not participate. Slough was joined by Acting Presiding Justice Art W. McKinister and Justice Michael J. Raphael.
Controversial Decision
Ottolia gained wide attention in 2018 when he ruled that the state’s assisted-suicide law was unlawfully enacted by the Legislature in 2015 at a special session that was devoted to healthcare issues, enjoining enforcement of the act. About three weeks later, Div. Two of the Fourth District Court of Appeal ordered that a writ of mandate issue knocking down Ottolia’s order.
The three justices found that the plaintiffs in the case lacked standing. Div. Two did not proceed to decide the constitutional issue, over the protest of Slough who wanted to declare the legislation valid.
Assisted suicide legislation was subsequently reenacted at a regular session.
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