Ballot designation blues

"It's nothing personal, Sonny. It's strictly business." Hopefully one does not have to be a cinephile to recognize this familiar quote from "The Godfather" (1972), in which Michael Corleone calmly and without emotion states this to his brother as to why the family needs to take immediate action against the people who just recently attempted to assassinate their father. Although the actions involved in this article clearly don't warrant the types of immediate response contemplated by the Corleone family, they cannot be allowed to stand without comment or explanation.

In October 2017, Gov. Jerry Brown signed into law Senate Bill 235, which amended Elections Code Section 13107 to call for the use of actual government job titles or neutral generic references to the candidate's status as a lawyer in all ballot designations for superior court judge, effective for all elections after Jan. 1, 2018. The genesis of this reform was discussed in a previous article, "Judicial ballot reform is here," Daily Journal (Feb. 27, 2018).

We are now in our second election cycle under SB 235. It is the intention of this article to discuss the errors (technical or otherwise) contained in certain proposed ballot designations for this current election cycle. For the sake of brevity, only the more glaring of these errors will be discussed.

The most egregious error, in this author's opinion, has been submitted by Mark MacCarley (Office No. 129) who has submitted "Retired Army General" as his ballot designation. Don't get me wrong, he was in fact an army general who apparently retired in January 2015. Whether this retirement was from a reserve position or not remains unclear (although I suspect it was). The fact that he served in our armed forces as either a private or as a general certainly demands respect and admiration from all of us. Be that as it may, it doesn't entitle MacCarley to use such an improper designation.

First, it is an undisputable fact that MacCarley has been an "active" member of the California State Bar, at all times since his admission in December 1975. Additionally, it is fact that at the time he submitted this designation he was actually "practicing law as one of his principal professions." Hence, his mandatory designation must be made under subdivision (c) of Elections Code Section 13107. As such, he is required to use one of the following designations: "Attorney." "Attorney at Law," "Lawyer," or "Counselor at Law." In short, he must use one of those designations. If, and only if, he uses either "Attorney" or "Lawyer," he then has the option of also using "in combination" with same, "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 nominating documents." In other words, this other profession must be either a "current principal profession, vocation, or occupation," or it must have occurred sometime in 2018.

Even MacCarley would have to concede that he didn't use any of the mandatory designations expressly contained in subdivision (c), and moreover, even if he had used either "Attorney" or "Lawyer," the additional use of "Retired Army General" does not meet the definition of either a "current principal profession, vocation, or occupation," nor was it something he performed in 2018.

Additionally, it is doubtful that MacCarley could have even properly used the term "retired" under the applicable laws since it is undisputed that he has engaged (apparently full-time) in the practice of law, since his "retirement" of almost five years ago.

This brings us to Judge Mike Cummins (Office No. 76) who had initially proposed the ballot designation of "Retired Judge." He has recently changed his designation to "Retired."

Now don't get me wrong, Cummins is a "retired judge." He was appointed as a judge in 1994 to the Stanislaus County Municipal Court, and became a superior court judge upon that court's unification in 1998. He then retired as a judge in 2006, and has practiced law as his principal occupation since then, until January 2017, at which time he claims in his Ballot Designation Worksheet to have "completely retired" from any and all occupations. I use the word "claims" for a simple reason. Per the State Bar's website, Cummins was on "active" status from December 2006 to Jan. 17, 2017, at which time he voluntarily became "inactive." However, he once again voluntarily put himself on "active" status on Feb. 1, 2018. This leaves one to wonder as to the reasons why someone would re-activate their law license, pay dues, and submit oneself to mandatory continuing legal education, if they had, in fact, "completely retired."

If Cummins was "practicing law as one of his or her principal professions" as of the date of his any of his designations, he also would be mandated to use one of the designations enumerated under subdivision (c). Assuming arguendo that Cummins was no longer "practicing law" at that time, and he was "retired" from any and all professions, then the mandatory designation under subdivision (c) would not apply, and instead, his designation would be under subdivision (b)(1)(C), to wit, "[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." Does the simple word "Retired" meet this requirement? On its face, no. It does not appear to be a "current principal professions, vocations, or occupations." It is unknown whether Cummins actually practiced law sometime in 2018, although it is not disputable that he was on "active" status that entire year.

To be fair, the use of the word "retired," as a modifier has been acceptable in ballot designation, under certain circumstances. For example, if Cummins had been retired from the practice of law at the time of his proposed designations, and if he had not practiced law at all in 2018, then he should be allowed to use the designation of "Retired Attorney" or "Retired Lawyer." It would be an accurate and non-misleading designation. Of course, his ill-advised and improper attempt to use "Retired Judge" was clearly in violation of the Elections Code. First and foremost, the official governmental regulations concerning Section 13017 expressly states: "A candidate may not use the word "retired" in his or her ballot designation if that candidate possesses another more recent, intervening profession, vocation, or occupation." 2 CCR Section 20716 (h)(4). (Emphasis added.)

Additionally, under subdivision (h)(1), the "use of the word 'retired' in a ballot designation is generally limited for use by individuals who have permanently given up their chosen principal profession, vocation or occupation." (Emphasis added.) The mere fact that Cummins is now seeking to become a judge again, after retiring from that same position, clearly demonstrates that he has not yet "permanently given up" the profession of being a judge.

Anyway you slice it, these regulations alone should end the discussion of whether it was proper or not to attempt to use "Retired Judge." It wasn't.

The issue is now whether the single word "Retired" can be properly used by Cummins. Although not absolutely clear, one could contend that the word "Retired" cannot appear by itself; it must modify or otherwise state the profession, vocation or occupation from which you retired. Additionally, subdivision (h)(4), states that the word "retired" may not be used "in his or her ballot designation," which implies that cannot be used "as" your ballot designation. See also 2 CCR Section 20716 (h)(3).

This is common sense. For example, can one properly use the word "Unemployed" as a designation? Probably not under subdivision (b)(3) of Section 20716 since it is a "status," which is expressly defined as "generic in nature and generally fails to identify with any particular specificity the manner by which the candidate earns his or her livelihood or spends the substantial majority of his or her time." In short, in this context there is no substantive difference between the statuses of "retired" versus "unemployed."

Perhaps even a broader argument can be made: In Cummins' situation, the combined effect of the use of his proper legal name of "Judge Mike Cummins" (he legally changed his first name to "Judge") with the use of "Retired," undoubtedly misleads the voters into concluding that Cummins is a recently retired judge, which is an improper designation, under both the Elections Code, as well as the regulations which govern it. It is a fundamental premise of the Elections Code to disallow anything which would "mislead the voters," from an objective standpoint.

This brings us now to the unfortunate ballot designations of Robert Jacobs (Office No. 72, "Attorney/Immigration Advocate"), Timothy Reuben (Office No. 131, "Attorney/Managing Partner") and Caree Harper (Office No. 162, "Attorney/Community Educator"). To their initial credit, they have appeared to have at least read and understood the mandatory requirements of Elections Code Section 13107(c), in that the designation of "Attorney" appears first in each of their respective designations. Unfortunately their willingness to follow the dictates of the optional portion of this subdivision leaves something to be desired.

The issue is simple: Are any of these optional designations an "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." (Emphasis added.) A key word, of course, is "other," which clearly implies that it must be a "principal profession, vocation or occupation" other than an attorney or lawyer.

In all three designations, none of them pass this test. Surely, as the "Managing Partner" of his own law firm, this is directly connected to Rueben's practice as an attorney. Hence it is not an "other" profession from being a lawyer. Indeed, it stretches one's credulity to suggest otherwise.

As to Jacobs, his stated justification in his Ballot Designation Worksheet for using this designation was that he currently sits on the "Executive Committee of the Immigration Section of the Los Angeles County Bar Association, and the Kiwanis Club, AILA and MABA." Indeed, he list his "Employer Name or Business" as LACBA. While these seemingly charitable or pro bono efforts may be laudable, the simple cold fact is that being an "Immigration Advocate," vis-à-vis these stated capacities is not a separate or distinct profession, vocation, or occupation from being a lawyer. Clearly he does these functions in his role and capacity as an attorney, and more specifically, as an attorney who primarily practices immigration law.

Moreover, in none of those capacities is he being compensated with either a salary or monetary fee for his time or efforts -- they are purely voluntary. Additionally, I suspect that these voluntary efforts don't even constitute a "significant involvement" by Jacobs of his time sufficient enough to constitute a "principal profession, vocation, or occupation." See, e.g., Andal v. Miller, 28 Cal. App. 4th 358, 366-67 (1994) ("Principal" means "considerable" or "substantial." Also, if not paid or "compensated," the designation would "lack one of the critical hallmarks of a profession vocation or occupation.").

In the case of "Attorney/Community Educator," as submitted by Harper, the same analysis applies. In her Ballot Designation Worksheet she states, in essence, that she gives "regular on-air information to KJHL listeners on community concerns," including "voting issues, jury duty, candidate information [and] legal updates." She list her "Employer Name or Business" as "KJLH, 102.3 FM." However, it is unknown as to whether Harper is actually being paid for such services, and if so, how much, nor how much of her time this involves, as no indication of such compensation or time is discussed in her worksheet. Of course, it is a standard jury instruction that "[i]f a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence." CACI No. 203.

Be that as it may, once the fog has cleared it is relatively apparent that what both Jacobs and Harper are doing in their respective optional designations fit the classic definition of a "status" under 2 CCR Section 20716(b)(3). Nothing more; nothing less. Moreover, neither of these activities constitutes one of their "principal professions, vocations, or occupations," as defined by the applicable laws.

Last, but not least, no matter under which subdivision a judicial candidate designates their ballot title, such a designation is still governed under subdivision (e), which forbids, in part, any designation which would "mislead the voters." Section 13107 (e)(1). With all due respect, each and every one of these proposed designations don't pass the smell test in that regard.

This article, hopefully, can be a teaching moment for the current (and future) crop of judicial candidates. While it is understood that perhaps many of these candidates may take offense or disagree with my analysis, I would only remind them of one of the final scenes of "The Godfather," in which Sal Tessio is being escorted away to his certain death. He politely states to Tom Hagen (the Corleone's attorney/consign ilia): "Tell Mike it was only business. I always liked him." Tom's immediate response was: "He understands that."

I understand. 