Metropolitan News-Enterprise
Wednesday, Oct. 11, 2000
Page 1

Judge Rejects Martinez's Bid for TRO Against Challenger's Mailers

Los Angeles Superior Court Judge John Martinez yesterday lost his bid for a temporary restraining order to block his challenger, attorney Maria Vargas-Rodriguez, from distributing campaign materials that he claims try to pass Vargas-Rodriguez off as a judge.

After a brief in-chambers discussion with the candidates' attorneys, Orange Superior Court Judge Kim G. Dunning rejected Martinez's motion for a TRO and set a hearing on his preliminary injunction request for Oct. 25—less than two weeks before the election and arguably too late to affect the outcome of the race.

Martinez, a 19-year veteran of the Alhambra Municipal Court bench, came in second to Vargas-Rodriguez in the March primary. He sued her in late August in Los Angeles Superior Court, alleging that she distributed misleading campaign brochures before the primary that make her appear to be wearing a judicial robe and that refer to Alhambra judges as her "colleagues."

The suit was an attempt to keep Vargas-Rodriguez from distributing similar brochures in the weeks before the Nov. 7 general election.

Court Unification

Martinez became a Los Angeles Superior Court judge in the wake of court unification in January, and the election is for the Superior Court. But under the transition provisions from the former two-tier court system, only voters in the former Alhambra Judicial District—in the cities of Alhambra, Monterey Park, San Gabriel and Temple City—will cast ballots for the seat.

The case was heard in Dunning's Orange County courtroom on assignment from the Judicial Council after Los Angeles Superior Court judges declared a conflict in hearing a case regarding their colleague's re-election effort.

Vargas-Rodriguez's attorney, Bradley Hertz, said he was pleased, but not surprised, with the ruling.

"The judge seemed to agree with me that preventing the candidate from distributing her materials was a very drastic request," Hertz said. "It casts serious doubts on the plaintiff's case. The judge also expressed some concern [in chambers] that the plaintiff went to court first, as opposed seeking an administrative remedy."

The remedy, Hertz explained, was available from the Los Angeles County Bar Association's Fair Judicial Elections Committee, a panel that reviews disputes among judicial candidates on request.

Martinez's attorney, Leonard Chaitin, was not available for comment.

Not Appropriate Forum

Mark Siegel, Martinez's political consultant, said a private panel with voluntary guidelines and no direct authority over the judiciary was not the appropriate forum for his client's complaint.

"There is a state law that prohibits the activities that she engaged in," Siegel said. "The remedy is in court. There is nothing in the law that says to go to the county bar first."

In his complaint, Martinez cited Election Code Sec. 18350, which bars candidates from implying by their "statements or conduct that he or she is or has been acting in the capacity of a public officer when that is not the case," and Canon 5 of the Code of Judicial Ethics, which states that "a candidate for election or appointment to judicial office shall not....(2) knowingly misrepresent the identity, qualifications, present position or any other fact concerning the candidate or his or her opponent."

He also cited the county bar judicial election campaign guidelines as support for his contention that Vargas-Rodriguez acted improperly, but he did not seek review from the county bar panel.

Vargas-Rodriguez has filed a motion to strike the complaint altogether as a Strategic Lawsuit Against Public Participation under Code of Civil Procedure Sec. 425.16. That motion is currently set for Nov. 1. Dunning yesterday set for Oct. 25 a hearing on Hertz's request to shorten the statutory time to hear the anti-SLAPP motion.

Prior Restraint

In the anti-SLAPP motion, Hertz said Martinez's suit improperly seeks prior restraint on his client's exercise of her First Amendment rights in a "desperate bid to save a failing re-election campaign...."

Hertz also asserted in the motion that nothing in the campaign brochures distributed by Vargas-Rodriguez in the closing weeks of the March primary campaign imply that she is a judge, including a statement reproduced in large type that reads:

"Judge Michael Kanner and Commissioner Michael Duffy of the Alhambra Municipal Court, with the only candidate they support for Judge Maria C. Vargas-Rodriguez."

In his motion, Hertz acknowledged that the brochure was not a model of grammar and punctuation.

"While admittedly an English Professor would likely agree that a comma should have been placed between the words "judge" and "Maria," it is only Plaintiff who purports to be misled by the sentence," Hertz said. "The sentence only makes sense in referring to Defendant as a candidate for Judge, not that her current title is "Judge Maria C. Vargas-Rodriguez."

Also under contention is the candidate's assertion in her brochures that she is supported by Alhambra Judicial District "judges" and has the respect of her judicial "colleagues" when in fact she has the endorsement of only one Alhambra judge and one commissioner. Martinez also took issues with a photograph of Vargas-Rodriguez dressed in black standing with her two supporters from the bench. They are wearing judicial robes and that may cause the casual reader, Martinez alleged, to assume Vargas-Rodriguez's dark outfit is a judicial robe.

The former Alhambra Municipal Court is politically divided, with Kanner and Duffy backing Vargas-Rodriguez over their longtime colleague. Martinez, meanwhile, has the backing of other Alhambra judges. Judges Candace Beason, Teresa Sanchez-Gordon and Carlos Uranga all submitted declarations saying they support Martinez for re-election and that they are "offended by any suggestion to the contrary."

Vargas-Rodriguez won 38 percent of the March vote to Martinez's 35 percent. California Association of Realtors attorney Llewellyn Chin won 27 percent and was eliminated.

Martinez blamed his poor showing on negative mailers.