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Judges and Judiciary,

Feb. 27, 2018

Judicial ballot reform is here

Now that it is election season, the legal community once again will turn part of its focus upon the upcoming elections for superior court judge, which occur on a countywide basis throughout California.

Now that it is election season, the legal community once again will turn part of its focus upon the upcoming elections for superior court judge, which occur on a countywide basis throughout California. Whether it be an incumbent judge who is facing a challenge or a contest for an "open" seat (to wit, the incumbent is not running for re-election), there has been a recent development which will have a considerable impact. Last October, Gov. Jerry Brown signed Senate Bill 235, which amended Election Code Section 13107, to require 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. This measure received broad support throughout our legal community.

The genesis of this reform was the alarming trend of prosecutors, in the words of the bill's author, Sen. Ben Allen, to utilize "emotion-gripping ballot designations" such as "Child Molestation Prosecutor" or "Gang Murder Prosecutor," which, in many cases, "exaggerate their experience of punishing criminals." Of course, it was also recognized that such gamesmanship was not limited to prosecutors. Even attorneys from the private sector couldn't resist the urge to engage in such chicanery. For example, an immigration lawyer suddenly became a "Domestic Violence Attorney," based upon the premise that in a few of her client's immigration applications they had requested relief based upon the Violence Against Women Act.

Under the new law, effective for all judicial elections after Jan. 1, 2018, there are now three distinct categories of candidates -- incumbents, public sector lawyers, and private sector lawyers. The new amendments don't apply to incumbent judges, as they are not "active members" of the bar. Superior court judges are not even "members" of the State Bar while they are in office. Incumbent judges must designate their ballot title under Election Code Section 13107(b)(1). Most will chose to designate under (b)(1)(A) and utilize "words designating the ... state ... office held the candidate at the time of the filing of the nomination papers," namely "Judge of the Superior Court" or "Superior Court Judge," etc. Interestingly enough, a judge does have the option of simply using the designation "incumbent," per Section 13107(b)(1)(B), and perhaps suffer the fate of Judge Roberta Ralph, who lost her seat in 1988 utilizing such a designation.

Public sector attorneys are required to designate under subsection (b)(2). The candidate must be, at the time of the designation, "an active member of the State Bar employed by a city, county, district state, or by the United States." As such, one must be "an active member of the State Bar" and "employed" by some sort of governmental agency. This requires that you must be a current employee of that governmental entity. Typically, this new subdivision will apply to anyone who is currently employed by the district attorney's office, the public defender's office, a city attorney's office, or by the attorney general. It could also apply to subordinate judicial officers, such as a commissioner or referee, if that person is also currently an "active member of the State Bar." While serving as an active subordinate judicial officers -- thus being "employed" by a governmental entity (i.e., the county) -- an officer need not be an "active" member of the State Bar. Most subordinate judicial officers will go on inactive status while serving in that role, since they save money on bar dues and need not comply with State Bar MCLE requirements. However, they may keep their active status, if they choose to do so. The same is true for an administrative law judge.

Unfortunately, this may create somewhat of a dilemma for subordinate judicial officers and administrative law judges under the new law. The legislative intent of SB 235 was clearly to have judicial candidates who are currently employed by a governmental entity to simply state their generic job title, e.g., "Deputy District Attorney," "Deputy City Attorney," and so forth, without any further specific details. The new law also requires that if that governmental entity is a county or city (or both) that entity must also be specifically stated. See Section 13107(b) (3)(A), (B) and (C). However, if the subordinate judicial officer is not a current active member of the bar at the time of designation, that officer cannot utilize the provisions of this new subdivision. He or she would now be forced to designate under the older provisions of (b)(1)(C), which is limited to three words designating "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."

One would expect that a commissioner who is not a current "active member of the State Bar" would simply state "Superior Court Commissioner," or some three-word variation thereof. However, if that commissioner is on active status, he or she must then designate under the new subdivision, who would not have any word limits. And the statement would be require to include the specific name of the county, as in the case of other "public sector" attorneys.

The same analysis applies to administrative law judges and any other type of attorneys who perform "quasi-judicial functions" for a governmental agency. If the quasi-judicial officer qualifies under subdivision (b)(2), he or she will also be mandated to additionally state the "name of the agency." Section 13107(3)(D).

In short, public sector attorneys are given an option to designate either under (b)(2)(A) ("Words designating the actual job title, as defined by statute, charter or other governing instrument."), or under (b)(2)(B), which are the exact same requirements for "private sector" attorneys, discussed infra.

The new law was clearly intended to forbid any further details or embellishments on the "job title" of public sector attorneys. For example, it is understood that most offices of district or city attorneys instigate both civil and criminal proceedings. Be that as it may, under the new law a "public sector" candidate will no longer be able to distinguish between these two areas. Whether you are a "Prosecutor" or a "Civil Litigator" within your particular office, you may only utilize the generic name of your "actual job title, as defined by statute, charter or other governing instrument." Section 13107(b)(2)(A).

Of course, one must not forget that all of the restrictions and mandates of SB 235 only apply to ballot designations. A judicial candidate is still free to use whatever occupational terms he or she may like in their campaign literature, and even in any formal candidate statement, within the confine of the laws governing ethics of attorneys or judicial officers.

Private sector attorneys will either designate under the new subdivision (c), or under subdivision (b)(1)(C), depending on two factors: One, whether the candidate is a current "active member of the State Bar;" and if so, two, whether the candidate currently "practices law as one of his or her principal professions." If the candidate meets both criteria, that candidate must designate under subdivision (c). If the candidate doesn't meet both criteria, the candidate must then designate under subdivision (b)(1)(C).

The designation for private sector attorneys under new subdivision (c) is relatively straightforward. One can use either "Attorney," "Attorney at Law," "Lawyer" or "Counselor at Law." As an option, though, one can use either "Attorney" or "Lawyer" in "combination with one other current principal profession, vocation, or occupation of the candidate during the calendar year immediately preceding the filing of nomination documents." The key words are "one," "other" and "current." First, the use of "one" means exactly what it states -- one. Thus, for example, a candidate cannot utilize a designation such as "Attorney/Mediator/Arbitrator," since there is more than "one other" principal profession, etc. I suppose one could perhaps use "Attorney/Priceline Negotiator," since that contains only "one other" possible "principal profession, vocation, or occupation" involved. (The new law's use of the singular terms "profession, vocation, or occupation" is quite telling, when compared to the plural term utilized in the prior law, and as still utilized in (b)(1)(C), to wit, "professions, vocations and occupations.")

The word "other" is also critical. This means that the "one other principal profession," etc., cannot be directly related to the job of an "Attorney" or "Lawyer." Moreover, these additional two words cannot modify or otherwise describe what type of "Attorney" or "Lawyer" the candidate is or was, since it would not be "one other principal profession," etc. As such, designations such as "Employment Law Attorney" or "Criminal Prosecutor Attorney" would be in violation of the new law.

Lastly, 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)), or uses the word "former" or "ex." Section 13107 (e)(4). The published case law on certain legal issues, for example, as to what is a "principal professions, vocations, or occupations" may still apply, depending on the circumstances. 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.")

Suffice it to state, these new amendments will hopefully restore some balance to our judicial elections, and moreover, they will hopefully decrease the potency of ballot designations and to increase the merits of a particular candidate's worthiness to be elected a superior court judge.


Ben Armistead

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