More on ballot designations and other shenanigans

What is the most important quality which a judge should possess? Intelligence? Trial experience? The list could be endless. Be that as it may, I will respectfully submit that this quality is integrity. In its simplest form this is a personal quality of fairness; having integrity means doing the right thing in a reliable way. This concept was the fundamental basis for the recent reforms in judicial ballot designations (Senate Bill 235), which I had attempted to explain, in part, in my Feb. 27 column, "Judicial ballot reform is here."

I am generally pleased to note that the vast majority of the current field of candidates for Los Angeles County Superior Court judgeships have taken these reforms to heart. Indeed, the usual crop of deputy district attorneys (with one exception) have submitted ballot designations in strict compliance with these new laws.

Unfortunately, there were several violations (attempted or otherwise) of either a technical and/or substantial nature. For the sake of brevity, I will only discuss the more glaring errors.

At this point in time the clearest violations appear to be in the proposed ballot designations of Onica Cole (Office No. 67), David Diamond (Office No. 118) and Ken Fuller (Office No. 126). [Editor's Note: At the time of this writing, the Los Angeles County registrar's website listed the ballot designations of Cole and Fuller as "under review."]

Cole's proposed ballot designation of "Consumer Protection Prosecutor" is not only misleading, it is blatantly false. Cole is a former deputy L.A. city attorney, whose employment was terminated last January. As such, she is not currently "employed by a city" or any other governmental entity. Thus, she is not allowed to designate under the new subdivision (b)(2) of Elections Code Section 13107. Her designation must either be under the new subdivision (c) or under the old (but still valid) subdivision (b)(1)(C). This will depend solely on whether Cole was an "active member of the State Bar" as of the time of her designation. If she was on "active" status, she must designate under subdivision (c); if she is on "inactive" status, she must then designate under subdivision (b)(1) -- more specifically, under (b)(1)(C), since she is not eligible to designate under (b)(1)(A) or (b)(1)(B). According to the State Bar's website, she was listed as being on "active" status as of March 9, 2018 -- the date upon which she submitted her designation.

If she was on active status, then even upon a cursory review of subdivision (c), no reasonable person could ever conclude that this designation is even possible. She is certainly allowed to use the word "Attorney," alone or in combination with "one other principal profession, vocation, or occupation." However, the word "other" is key. This means that this "profession, vocation or occupation" must be something other than an attorney. These additional words cannot modify or otherwise describe what type of attorney you are (or were in the past calendar year). It simply has to be a different "principal profession, vocation, or occupation" other than an attorney, such as law professor, farmer, rock star, etc.

If Cole was on "inactive" status as on March 9, then her proposed designation under (b)(1)(C) is still improper. We can all agree that to be an attorney (active or inactive), one must have (or have had) an actual license to practice law. Under the regulations which govern ballot designations, a candidate "who holds a professional, vocational or occupational license issued by the State of California may not claim such profession, vocation or occupation as one of his or her 'principal' professions, vocations or occupations if (i) the candidate's licensure status is 'inactive' at the time the candidate files his or her nomination." Cal. Code Regs. tit. 2, Section 20714(b)(2). See also ¶(d). No matter how you slice it, Cole is simply unable to use this misleading designation.

Diamond's apparent violation is less complicated. First, a reality check (and quick Google search) will reveal the following facts: Diamond is primarily a criminal defense attorney, and from what I hear, a rather good one. He is also the current chairperson of the Burbank Police Commission. As such, is his proposed ballot designation of "Police Commissioner/Attorney" a valid one under the new subdivision (c)? On first glance -- perhaps. Clearly a police commissioner is a profession, vocation or occupation other than an attorney. However, in Diamond's case is this an actual "principal, profession, vocation or occupation"? Upon further review of the facts, I respectfully submit that it is not. First and foremost, it is a volunteer position, to wit, there is no compensation. Second, to even suggest that it is a "part-time" position stretches one's credulity. They meet one evening a month, for a few hours per meeting. Moreover, they act in a pure "advisory" role.

Under the scant case law which has discussed what constitutes a "principal profession, vocation or occupation" it has been held that it must be something that involves a "substantial" or "significant involvement" of one's time, and moreover, it must involve some type of compensation. See, e.g., Andal v. Miller, 28 Cal. App. 4th 358, 366-67 (1994) (If not paid or "compensated," the designation would "lack one of the critical hallmarks of a profession vocation or occupation.") In the case of Diamond, neither is applicable.

Indeed, assuming arguendo that somehow that Diamond's proposed designation meets this test (which it doesn't), it will still be invalid, in my opinion, based upon the simple fact that it is misleading. Section 13107 (e)(1). What would the average voter think? The L.A. Police Commission is in the news a great deal. They serve a very important function in our community. Not to minimize the importance of the Burbank Police Department, but the L.A. Police Commission acts in a much greater capacity that its counterpart in Burbank.

Why not put "Police Commissioner, City of Burbank"? Wouldn't that be less misleading than the current designation? It must be noted that there are no word limits for the "other profession, vocation or occupation" under subdivision (c). Additionally, why put this designation in front of "Attorney" as opposed to after "Attorney"? To the extent you can have more than one "primary" other job (which seems to be an oxymoron), which of these two "jobs" is the primary job of Diamond. The answer is, of course, self-evident.

Diamond may be an otherwise admirable citizen and excellent attorney. However, this proposed designation doesn't reflect such qualities. Moreover, it certainly doesn't reflect the qualities and character needed of a superior court judge.

Last is the somewhat disappointing case of Fuller. Fuller's proposed ballot designation of "Deputy District Attorney, County of Los Angeles/Captain, U.S. Air Force" doesn't seem so offensive at first blush. I have no doubt that Fuller actually engages in both of these professions. However, here's the problem: Fuller wants to have his cake and eat it too. He properly designates under the new subdivisions (b)(2)(A) and (b)(3)(B). ("Deputy District Attorney, County of Los Angeles"). This is the identical ballot designation of the other 12 colleagues of Fuller from the DA's office.

Unfortunately, in his apparent attempt to "win-at-all-costs," he now wants to distinguish himself from his fellow DDAs by raising the American flag to add the fact that he is a Reserve J.A.G. captain in our armed services. Now don't get me wrong. This is also an admirable profession. But we all know what the true motivation of Fuller is by attempting to use this designation, to wit, to pander to the basic instincts of the uniformed electorate. To me, there is no difference in this context between a "Child Molestation Prosecutor" and a "Captain, U.S. Air Force." The motivation behind the proposed utilization of each are the same. This is exactly what these reforms were intended to stop. Twelve of the DDAs clearly understood this; Fuller apparently did not.

This specific violation lies in the clear words of the statute itself. A "public sector" attorney must choose to designate under (b)(2)(A)/(b)(3)(B) or under (b)(2)(B). One cannot designate under both: "the designation shall appear as one of the following."

Fuller, I suppose, could have perhaps chosen to designate under (b)(2)(B) as "Attorney/Captain, U.S. Air Force." However, since he acts primarily as a J.A.G., this would be acting in the same capacity as an attorney. As such, it would not be "one other" job he holds.

The sad part of Fuller's plight to this point is this painful fact: When he first returned his nomination papers and submitted his ballot designation on Feb. 28, he joined the ranks of his fellow colleagues by submitting the simple and valid designation of "Deputy District Attorney, County of Los Angeles." However, on the last day to return these documents (March 9), just a few moments after the closing of the registrar's office at 5 p.m., Fuller's ballot designation suddenly finds this addition of "Captain/ U.S. Air Force." Once again, this type of gamesmanship does not reflect well on the integrity of Fuller, who appears otherwise to be a sound and responsible citizen.

I must confess that as a judge, I become somewhat skeptical whenever a party attempts to argue a violation of the "spirit of the law." However, in these cases, I merely take issue with violations of the clear wording of the statute itself. I would urge these candidates to re-read this statute at issue, and to act accordingly. (This assumes, of course, that they actually read it in the first place.)