SIXTH
IN A SERIES OF ARTICLES ON LAW AFFECTING JUDICIAL ELECTIONS
IN CALIFORNIA
By
Roger M. Grace
I.
INTRODUCTION
With the public
largely in the dark as to the relative qualifications of candidates
for judgeships, judicial races are most often won based on ballot designations
of the candidates. Unless there is a substantial issue against a sitting
judge, a ballot designation indicating that the candidate is a sitting
"judge" will most often assure the incumbent of victory. A municipal
court judge opposing a superior court judge is apt to have wasted his
or her filing fee. A municipal court judge running for a superior court
open seat, on the other hand, has a distinct advantage over a "commissioner"
of either a municipal court or the superior court because most voters
simply don’t know what a court commissioner is. The leading campaign
consulting firm in judicial races, Cerrell Associates Inc., won’t handle
the campaign of a commissioner vying with a judge. With the public being
of anti-crime bent, a deputy district attorney has an edge over other
lawyers and over a commissioner.
Given the significance
of ballot designations on election outcomes, it is understandable that
there has been litigation over what an opponent may or may not use as
a title.
The Elections Code
spells out in §13107 what is permissible as a designation. That
section, formerly §10211 (until 1994), traces its origins to a
1873 provision in the old Political Code. It permits an incumbent to
list the title of his or her office fn.
1or
to use the word "incumbent"; it permits any candidate to use a description
of no more than three words of the person’s "principal professions,
vocations, or occupations" at present or in the previous calendar year.
Elections
Code §13107
(a)
With the exception of candidates for Justice of the State Supreme
Court or court of appeal, immediately under the name of each
candidate, and not separated from the name by any line, may
appear at the option of the candidate only one of the following
designations:
(1)
Words designating the elective city, county, district, state,
or federal office which the candidate holds at the time of
filing the nomination documents to which he or she was elected
by vote of the people, or to which he or she was appointed,
in the case of a superior, municipal, or justice court judge.
(2)
The word "incumbent" if the candidate is a candidate for the
same office which he or she holds at the time of filing the
nomination papers, and was elected to that office by a vote
of the people, or, in the case of a superior, municipal, or
justice court judge, was appointed to that office.
(3)
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.
(b)Neither
the Secretary of State nor any other election official shall
accept a designation of which any of the following would be
true:
(1)
It would mislead the voter.
(2)
It would suggest an evaluation of a candidate, such as outstanding,
leading, expert, virtuous, or eminent.
(3)
It abbreviates the word "retired" or places it following any
word or words which it modifies.
(4)
It uses a word or prefix, such as "former" or "ex-," which
means a prior status. The only exception is the use of the
word "retired."
(5)
It uses the name of any political party, whether or not it
has qualified for the ballot.
(6)
It uses a word or words referring to a racial, religious,
or ethnic group.
(7)
It refers to any activity prohibited by law.
(c) If,
upon checking the nomination documents, the election official
finds the designation to be in violation of any of the restrictions
set forth in this section, the election official shall notify
the candidate by registered or certified mail return receipt
requested, addressed to the mailing address appearing on the
candidate's nomination documents.
(1)
The candidate shall, within three days from the date of receipt
of the notice, appear before the election officer or, in the
case of the Secretary of State, notify the Secretary of State
by telephone, and provide an alternate designation.
(2)
In the event the candidate fails to provide an alternate designation,
no designation shall appear after the candidate's name.
(d) No
designation given by a candidate shall be changed by the candidate
after the final date for filing nomination documents, except
as specifically requested by the elections official as specified
in subdivision (c) or as provided in subdivision (e).
(e) The
designation shall remain the same for all purposes of both primary
and general elections, unless the candidate, at least 98 days
prior to the general election, requests in writing a different
designation which the candidate is entitled to use at the time
of the request.
(f) In
all cases, words so used shall be printed in 8-point roman uppercase
and lowercase type except that, if the designation selected
is so long that it would conflict with the space requirements
of Sections 13207 and 13211, the elections official shall use
a type size for the designation for each candidate for that
office sufficiently smaller to meet these requirements.
(g) Whenever
a foreign language translation of a candidate's designation
is required under the Voting Rights Act of 1965 (42 U.S.C.A.
Sec. 1971), as amended, to appear on the ballot in addition
to the English language version, it shall be as short as possible,
as consistent as is practicable with this section, and shall
employ abbreviations and initials wherever possible in order
to avoid undue length.
"Any elector" may
seek a writ of mandate in the Superior Court (or Court of Appeal or
Supreme Court) to block a ballot designation (or other "error" about
to occur in the printing of a ballot, sample ballot or voter’s pamphlet).
§13314(a)(1). Subd.(a)(2) provides that the writ will issue "only
upon proof of both of the following: (A) that the error, omission, or
neglect is in violation of this code or the Constitution, and (B) that
issuance of the writ will not substantially interfere with the conduct
of the election."
Petitions assailing
either Municipal or Superior Court designations are filed in the Superior
Court in the county in which the election is to take place,
fn. 2 naming
as respondent the local election official (which in Los Angeles would
be the registrar-recorder).
An order under
Sec. 13314 is appealable. Knoll v Davidson (1974) 12 Cal 3d 335.
The appeal "shall have priority over all other civil matters." Sec.
13314(a)(3). Or, the losing party may challenge the action by filing
a writ petition in the Court of Appeal against the superior court (Mann
v. Superior Court (1986) 181 Cal.App.3d 372, 375), or may file an
original proceeding in the Court of Appeal (Andal v. Miller (1994)
28 Cal.App.4th 358, 361).
II. CASES
Salinger
v. Jordan (1964) 61 Cal.2d 824
HOLDING: A candidate who runs in the primary with no ballot designation
may gain a designation in the general election upon timely application.
An unlikely scenario
is this: a candidate runs in the primary election with no ballot designation
and makes it into the run-off. The contender is then appointed to the
vacant office being sought, and requests a change of designation on the
ballot to reflect his or her new title. Election officials refuse, declaring
that there was no designation in the primary, hence no designation to
change.
That was the very
situation in 1964 when former presidential press secretary Pierre Salinger
ran for the U.S. Senate. He was appointed to the post 89 days before
the Nov. 3 election. The state Supreme Court, rejecting the secretary
of state’s rather labored reasoning (possibly reflecting membership
in a rival political party), granted a peremptory writ of mandate ordering
the insertion of the title "United States Senator" (and listing of his
name first, as the incumbent).
The same reasoning
would, of course, pertain in a judicial election. There has, however,
been one change in the statute which, if it had been in effect in 1964,
would have dictated a different result: the request for a change in
designation at that time had to be made 45 days before the general election,
and now (under §13107(e)), it must come "98 days prior to the general
election."
Workman
v. Superior Court (1980) 2 Civ. No. 58915
HOLDING: A court commissioner may not be designated on the ballot as a
"Judge Pro Tempore," but an administrative law judge may be designated
as such on the ballot. (Unpublished
decision.)
Lee B. Ragins, a commissioner
of the Los Angeles Superior Court, was a candidate for a Los Angeles Municipal
Court seat in the June 3 election. He sought to be designated on the ballot
as "Judge Pro Tempore."
William Turkish,
a candidate in the same race, sought to use the ballot designation of
"administrative law judge." He was a Public Utilities Commission hearing
officer.
Registrar-Recorder
Leonard Panish disallowed both designations, and each of the two candidates
went to court seeking a writ of mandate. Superior Court Judge Jerry
Pacht granted both petitions.
Then-Deputy City
Attorney (now Superior Court Judge) David A. Workman sought a writ in
the Court of Appeal, arguing that either designation would falsely impart
to the voter that the candidate is a sitting judge. The Court of Appeal
agreed with Workman as to one of the two designations. Div. Three, on
April 1, 1980, issued a writ ordering the Superior Court to vacate its
order permitting Ragins to be identified as a Judge Pro Tempore. Workman
v. Superior Court (Ragins, Turkish RPI)¸ 2 Civ. No. 58915.
(Workman went on
to win election in a November run-off and was elected two years later
to the Superior Court.)
Luke v. Superior Court(1988) 199 Cal.App.3d 1360
HOLDING: A court commissioner may not be designated on the ballot in any
manner which includes the word "judge" or any derivative of that
word.
Then-Los Angeles Superior
Court Commissioner Jewell Jones (since retired) ran in 1988 for a Los
Angeles Superior Court open seat. Her opponent in the June 7 election
was a judge of the Los Angeles Municipal Court, Sherrill Luke. Without
regard to the contestants’ respective abilities, it was virtually inevitable
that Luke, with the ballot designation of a judge, would prevail over
the commissioner — unless she were able to devise a ballot designation
that would communicate to voters her status as a bench officer of the
Superior Court. She attempted to use the designation of "Judge, Los Angeles
County (Acting)." Luke sought a writ to block her use of that title. Then-Los
Angeles Superior Court Judge Miriam Vogel (now a justice of the Court
of Appeal) denied the writ, and Luke then filed a writ petition in the
Court of Appeal. Div. Five, in a well-reasoned opinion by then-Justice
Herbert Ashby (since retired), serving as acting presiding justice, granted
the writ.
Ashby wrote, at
1362:
"Creative"
uses of these subsections [of then-Sec. 10211] are impeded by subdivision
(b)(1), which prohibits the Secretary of State or any other election
official from accepting a ballot designation which would mislead
the voter. The designation "Judge-Los Angeles County (Acting)" is
neither the title of the office which Commissioner Jones presently
holds (subdivision (a)(1)), nor an accurate description of her occupation
(subdivision (a)(3)).
Commissioner
Jones apparently elected to forego subdivision (a)(1), which would
have required her to use the title "Superior Court Commissioner"
or some acceptable variation thereof, and proceed under subdivision
(a)(3), which permits a descriptive title of three words or less.
Commissioner Jones accepted the ballot designation "Judge-Los Angeles
County (Acting)" after the Secretary of State properly rejected
her first two choices, "Judge Pro Tem, Superior Court" and "Judge-Pro
Tem, Superior Court."
Ashby went on to
say, at 1363:
Despite our
admiration for the work done by the commissioners employed by the
court system, we disagree with the respondent court's conclusion that
the designation proposed by Commissioner Jones is not misleading.
Although Commissioner
Jones may act as a judge by stipulation, she is not an "acting judge."
That term is misleading because it implies that she is the "acting"
occupant of the office she is seeking by election. The implication
is that the election is a mere formality. We see no appreciable
difference between the term "acting judge" and the term "judge pro
tempore," the use of which has been disapproved by this court.
....
We therefore
hold 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.
COMMENT:
Taken literally, a federal magistrate judge could not utilize
his or her actual title inasmuch as that person would not be a
judge "as that term is defined in the Constitution and statutes
of this state." (For that matter, a federal district judge or
circuit appeals would be similarly barred, though prospects of
one with life tenure seeking election to a state trial-court seat
does not seem likely.)
Andal
v. Miller (1994) 28 Cal.App.4th 358
HOLDING: A candidate may not use a ballot designation which relates to
an activity in which he or she does not have a significant involvement.
Then-state Sen. Robert
Presley was a candidate in the 1994 general election for a seat on the
Board of Equalization. A reserve deputy sheriff, he sought to bill himself
as "Senator/Peace Officer." His opponent, then-Assemblyman Dean Andal,
petitioned in the Court of Appeal for a writ of mandate to compel the
acting secretary of state to reject the designation, arguing that "peace
officer" was not one of Presley’s "principal professions, vocations, or
occupations," either currently or, as permitted by the statute, within
the previous one-year period. The Third District Court of Appeal, in an
opinion by Justice Keith Sparks, granted the writ, reasoning, at 366-367:
[T]he statute
requires that the ballot designation reflect the candidate's "principal
professions, vocations, or occupations...." (Elec. Code, 10211,
subd. (a)(3), italics added.) One of the common meanings of the
adjective "principal" is "[h]ighest in rank, authority, or importance"
(Webster's New Internat. Dict. (2d ed. 1938) p. 1966) and in this
sense it is an oxymoron to assert that a candidate may have more
than one principal profession, vocation or occupation. Nevertheless,
it is clear that by the use of the plural terms the statute envisions
that the candidate may indeed engage in multiple principal professions,
vocations or occupations. In the words of the [Secretary of State’s]
Guidelines, a candidate "may work at more than one profession, vocation,
or occupation." (Guidelines, pt. II.C.1., p. 4.) Thus, the Legislature
used the word "principal" in its secondary sense as meaning "[m]ain;
leading; outstanding; important; ..." (Webster's New. Internat.
Dict., supra, p. 1966.) In this statutory sense, the word connotes
a substantial involvement of time and effort such that the activity
is one of the primary, main or leading professional, vocational
or occupational endeavors of the candidate. Thus, the term "principal"
precludes any activity which does not entail a significant involvement
on the part of the candidate. Consequently, involvement which is
only nominal, pro forma, or titular in character does not meet the
requirements of the statute.
Given this
definitional requirement, we conclude the evidence is insufficient
to support Presley's claim that his position as a reserve deputy
sheriff justified the ballot designation of "peace officer." The
claim fails because the evidence did not establish that it was
one of his "principal professions, vocations or occupations" (Elec.
Code, §10211, subd. (a)(3)) either at the time he submitted
the designation in late July 1994 (Elec. Code, §10211, subd.
(e)) or "during the calendar year immediately preceding the filing
of nomination documents" (Elec. Code, § 10211, subd. (a)(3)).
As of July 1994, Presley had done nothing pursuant to his recent
appointment as a level III reserve deputy sheriff in Sacramento
County. The closest he came to performing actual reserve duties
was his appointment to a community action panel that was not even
scheduled to meet for another six weeks. As to Presley's consulting
[as a member of an advisory board], [Sacramento Sheriff Glen]
Craig admitted that he did not intend to request Presley's guidance
until after the election. Craig's declaration is silent whether
Presley would still serve as a consultant should his election
bid prove successful. Equally fatal is the fact that the nature
of his position as a reserve deputy sheriff is such that, unlike
full-time or part-time deputy sheriffs, Presley will never be
compensated for his service. Thus, the position lacks one of the
critical hallmarks of a profession, vocation or occupation.
COMMENT:
From this, it might be assumed that the Third District Court of
Appeal would likewise have barred a member of the Assembly seeking
a seat that year on the Los Angeles Superior Court from identifying
himself on the ballot as "Law Professor/Lawmaker." The candidate
had served as a parttime night school adjunct professor in the
past, but was not presently teaching law and had not taught a
course in the previous year. The statute restricts listings of
principal positions to those currently held and held "during the
calendar year immediately preceding the filing of nomination documents."
In an unpublished opinion, the same court that decided Andal
allowed the "Law Professor/Lawmaker" designation to be used
by then-Assemblyman, now Judge, Terry Friedman. Moriarity v.
Miller, Friedman RPI, C019137 (filed Sept. 21, 1994). Friedman’s
1992 teaching activities, it noted, "carried over into calendar
year 1993 because he had to complete the grading of final examinations
for his Fall 1992 course." Id. at 7.
Completing
the grading one set of papers during the calendar year preceding
the election could not, by any stretch of even judicial imagination,
be said to constitute other than "nominal" activity on Friedman’s
part as an academician, rather than an activity entailing "significant
involvement."
The non-publication
of the opinion could well be explained by its inconsistency
with Andal and its patent unfaithfulness to the dictates
of the statute. While one would not wish rashly to impute lack
of partiality to an appellate panel, suspicion is raised by
objective factors. Friedman was a powerful Democrat in a Legislature
controlled by his party. The judiciary was still feeling the
sting of the Legislature’s ire stemming from the Supreme Court’s
1991 decision upholding legislators’ term limits (Legislature
v. Eu (1991) 54 Cal.3d 492). There was widespread speculation
that Friedman was testing the waters as to the electability
of legislators to judgeships and that other lawmakers who would
be barred from seeking another term in 1996 would become judicial
candidates if Friedman succeeded. Metropolitan News-Enterprise,
Nov. 10, 1994, Page 1, "Schwartz, Friedman, Bryant-Deason
Elected to Superior Court."
The opinion
was authored by Justice Richard M. Sims III and joined in by
Acting Presiding Justice Keith Sparks and Justice Arthur Scotland.
Sims and Scotland are the same justices who concurred in Sparks’
opinion in Andal.
Andrews
v. Valdez (1995) 40 Cal.App.4th 492
HOLDING: An "administrative law judge" may be so designated on the ballot.
Deborah B. Andrews
was a candidate in the 1994 primary election for an open seat on the Long
Beach Municipal Court. She was then a judge of the California Unemployment
Insurance Appeals Board. The registrar recorder, acting pursuant to then-Elections
Code §10211, rejected the ballot designation she desired of "administrative
law judge" on the ground that it was "misleading." Los Angeles Superior
Court Judge Diane Wayne granted a writ of mandate ordering the registrar
recorder to accept the designation, and the registrar-recorder appealed.
Div. Three of this district’s Court of Appeal, in an opinion rendered
a year-and-a-half after the election (which Andrews won), affirmed.
Andrews could call
herself an administrative law judge, Justice Patti Kitching wrote for
a unanimous panel, because she was an administrative law judge.
Distinguishing
the present case from the fact situation in Luke v. Superior Court,
supra, Kitching explained, at 495, that Andrews’ ballot designation,
unlike the one Jewell sought to use, was neither "creative" nor "misleading";
rather it was the very title conferred by the Legislature in 1984 on
those judicial officers previously denominated "referees." Kitching
added at 495-496:
Luke properly
rejected a candidate's attempt to invent a nonexistent occupational
designation which misleadingly implied that the candidate already
occupied the office sought by the candidate. In this appeal the Legislature's
approval of "administrative law judge" left Andrews with no other
choice but to designate that title accurately. We therefore conclude
that the trial court ruled correctly.
1.
The same
office may be listed in various forms. In 1994, these ballot designations
were utilized by judges of the Los Angeles Superior Court :
Judge of the Superior
Court
Judge of the Los Angeles Superior Court
L. A. Superior Court Judge
Superior Court Judge
Judge of Los Angeles Superior Court
Judge, Superior Court
Judge Los Angeles County Superior Court
Superior Court Judge, Los Angeles County
Judge, Los Angeles County Superior Court
Judge of Superior Court Return
to text
2.
Under subd. (b)(1), venue lies exclusively in Sacramento whenever the
secretary of state is a respondent or real party. As some interpreted
prior law, all challenges to Superior Court designations had to be tried
in Sacramento inasmuch as the secretary of state was the election official
to whom Superior Court nominating petitions were routed. Former Elections
Code §8070. That interpretation was not universal. Thus, Luke
v. Superior Court (1988) 199 Cal.App.3d, discussed infra,
was a ballot designation dispute heard in Los Angeles Superior Court
and the Second District Court of Appeal; Moriarity v. Miller, Friedman
RPI, C019137, was a ballot designation dispute likewise arising
from a Los Angeles Superior Court contest but which was heard in the
Sacramento Superior Court and the Third District Court of Appeal. Any
uncertainty over venue was resolved by AB 1708 (McPherson, R-Santa Cruz),
enacted in 1995 as urgency legislation. It “deletes several provisions
of law which require county elections officials to forward nomination
and other documents related to candidates for Superior Court offices
to the Secretary of State, who certifies them and then returns the documents
to the county elections officials.” Bill digest.Return
to text
