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SUPERIOR COURT OF CALIFORNIA,
TIME: 01:30:0 PM
JUDICIAL OFICER PRESIDING: Kirk Nakamura
CASE NO: 30-2014-0740216-CU-WM-CJCCASE INIT.DATE: 08/18/2014
CASE TILE: Steve Chavez Lodge vs. Neal Kelley, Orange County Registrar of Voters
CASE CATEGORY: Civil -Unlimited
CASE TYPE: Writ of Mandate
File under the category of, “You know you’re having a bad day when…” :
Steven Albert Chavez Lodge had a very, very, very bad day last week, and that bad day played out in the worst imaginable location. Court. To be precise, Lodge’s day was ruined in the Orange County Superior Courtroom of Judge Kirk Nakamura.
Boy Wonder took on Anaheim City Council candidates Doug Pettibone, James Vanderbilt, and Dr. Jose Moreno, as well as Mayoral candidate William Denis Fitzgerald, challenging their ballot statements and/or titles. This is the right of Lodge, as any citizen may act in the standing of the public and challenge a candidate or ballot issue they believe to be misleading. This ability to challenge misinformation is the bedrock of American democracy, one I myself have used, ironically against Lodge in 2012, and Lodge is welcome to tackle those issues he seems to have concerns with. I would offer one bit of caution. Use a decent attorney.
Lodge’s Mark-S.-Rosen-Esquire-enabled objection against both Doug Pettibone and James Vanderbilt went after them for mentioning their endorsements by Mayor Tom Tait. Lodge’s dispute rested on his attorney’s use of case law, citing Patterson v. Bd. of Supervisors (1988) 202 Cal.App.3d 22, 33) to support his claim that citing the Mayor’s endorsement somehow turns the candidate statement into a “slate card.” (Ex Parte App. at p. 13:4-6) But Patterson relates to a completely different set of circumstances! The rules for candidate statements in Election Code § 13307 are entirely separate from the rules for ballot measures, which are found in Elections Code § 9295.
Patterson related to a ballot measure, for which a mailing also included statements regarding other issues and candidates for different offices on the ballot, which did indeed turn a ballot measure mailer into a de facto slate mailer. (Patterson, supra, 202 Cal.App.3d at p. 34) In order to apply Patterson to the candidate statements of Vanderbilt and Pettibone, their mention of another candidate, Tom Tait, would have to promote the other candidate. Instead, the Mayor’s endorsement of them is offered as a qualification of Pettibone and Vanderbilt, not of Tom Tait (although it does speak well of Tait to have selected running mates of sterling character.)
Lodge’s attorney, Mr. Rosen, also objected to the endorsement by Tait of both Pettibone and Vanderbilt, by citing additional Elections Code section 13308. Section 13308 limits candidate statements “to a recitation of the candidate’s own personal background and qualifications, and shall not in any way make reference to other candidates for that office or to another candidate’s qualifications, character, or activities.” (Elec. Code § 13308 – our emphasis)
A reading of the full context of the Elections Code makes it clear that the law is intended to keep candidates from bashing each other in competition for the same office. In no way is it meant to prevent the mentioning of endorsements by those running for other offices; indeed, those endorsements by higher office holders are frequently used in campaign statements.
Sections 13308 and 13307, for those who bother to read it, shows that the Elections Code cited by Rosen in Section 13308 cannot be interpreted to bar candidates from boosting their qualifications with endorsements from more well-known officials who happen to also be candidates for different offices.
Lodge’s request to delete those phrases and endorsements from the ballot statements of Pettibone and Vanderbilt were denied, as “Petitioner failed to met his burden to show by clear and convincing evidence that the statement is false or misleading…”
I hope Lodge got a really good rate on his fees!
Lodge also pursued Mr. Vanderbilt for his ballot title:
(a). Delete from the ballot designation the word “Educator/Army Captain” Ruling: Denied, on the basis that Petitioner has failed to show by clear and convincing evidence, that James Vanderbilt is not an “Educator.”
James Vanderbilt has a right, as a matter of law, to use “Educator” as his ballot designation.
Elections Code section 13107 governs a candidate’s ballot designation. James Vanderbilt’s ballot designation is valid under section 13107(a)(3) which allows for a three word designation that describes a candidate’s principal profession, vocation, or occupation.
Regulations promulgated by the Secretary of State interpret Elections Code section 13107 and help determine whether a ballot designation is valid. (See e.g. Andal v. Miller (1994) 28 Cal.App.4th 358, 366) In the instant case, “Educator” is a valid ballot designation if it is Vanderbilt’s principal profession as interpreted by the regulations.
The Secretary of State has defined “profession” as “a field of employment requiring special education or skill and requiring knowledge of a particular discipline.” (Cal. Code Regs., Tit. 2, § 20714(a)(1)) Education is specifically listed as an example of a field that is a valid profession. “Educator” is a profession.
The word “principal,” as used in Elec. Code § 13107(a)(3), is defined as having “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. (Cal. Code Regs., Tit. 2, § 20714(b))
However, if a candidate has a professional license issued by the state of California, then the candidate has a regulatory right to list that profession as his or her ballot designation, regardless of whether he or she spends a substantial involvement of time in the profession. ((Cal. Code Regs., Tit. 2, § 20714(b)(1))
James Vanderbilt has a valid Teaching Credential, which is a professional licensed issued by the State of California. (Declaration of Chad D. Morgan in Opposition to Ex Parte Application, filed Aug. 19, 2014 “Morgan Decl.” at ¶6, Ex. B) Since James Vanderbilt is licensed by the state as an Educator, he has the right to use Educator as his ballot designation.
James Vanderbilt is a Captain in the Army Reserves. (Declaration of James Vanderbilt, concurrently filed (“Vanderbilt Decl.) at ¶ 8) His Army Reserve duties take him away from home one weekend per month, at least two weeks per year, and he could be called up to active duty and forced to deploy anywhere in the world on 24 hours’ notice. (Id. at ¶ 9) In his role with the Army Reserves, Mr. Vanderbilt plans, prepares, administers, and teaches courses where Registered Nurses receive continuing education credits that satisfy state requirements.
Vanderbilt’s occupation was listed on his candidate statement as “Governing Board Member, Anaheim City School District” as a result of a clerical error;it should read “Educator / Army Captain.”
There IS one area of the challenge which Lodge won, and frankly James owes an enormous fruit basket to the gentleman for calling attention to a clerical error in which Mr. Vanderbilt would miss an opportunity to accurately describe himself to voters. In challenging the ballot statement, Lodge gave Vanderbilt the opportunity to change his ballot designation to the more appropriate (and more desirable) Educator/Army Captain, from the earlier identification as a Board Member with the School District.
Request to delete the following words from his candidate statement:
(b) after Occupation: “Governing Board Member, Anaheim City School District” Ruling:
Granted based upon concession by Real Party. The quoted language to be replaced with “Educator/Army Captain”
Lodge also took on everyone’s favorite punching bag, William Denis Fitzgerald.
Going for low-hanging fruit is acceptable, but you better pick the apple on the first try. Lodge failed. Lodge failed spectacularly!
Real Party in Interest Denis Fitzgerald. Request to delete the following words, from the Candidate Statement of Denis Fitzgerald:
“that have corrupted the City Council.”
“Petitioner failed to meet his burden to show by clear and convincing evidence that the statement is false or misleading, and such statement can form part of a candidate’s statement of qualifications under Elect. Code 1307(a).
Hammond v. Agran (199) 76 Cal.Ap.4th 181”
Lodge also contested the following from Fitzgerald, this getting lucky only because Fitzgerald took a true statement and badly misinterpreted or misrepresented it:
“Denis Fitzgerald’s background includes being instrumental years ago in reducing the corruption within the Anaheim City Government by having the former Anaheim council Member, Richard Chavez, convicted of Felony Tax Evasion. This was a significant accomplishment by Denis Fitzgerald since this former Council Member had been a major supporter of the multi-million dollar ‘giveaways’ of our tax money to benefit Disneyland. Tax money could have been used to directly benefit Anaheim residents and children.”
“Ruling Granted. The statement is misleading as it creates a false impression that the conviction of ex-City Council Member Richard Chavez for tax evasion on his personal federal income taxes was connected in any way with his voting record as a Anaheim City Council member on issues having to do with the Disney organization, and thus is improper under Elections Code §1313(b)(2).”
Keep in mind that former Councilman Richard Chavez really WAS convicted on Federal Income Tax charges, that part is true, and as a felon he can never run for office again. Rumors at the time claimed the Feds targeted Chavez hoping to get him to roll on Lorri “Teflon-coated” Galloway, but he stood true to his friend (and employer.) Now I don’t know if that is true or if Galloway kept Chavez in the dark and he had nothing to report, or perhaps…just maybe….Galloway was clean with nothing to share with the Feds…
Ok, sorry, you can get off the floor now, I didn’t mean to get you laughing so hard this early in the day. We will never know. But I will give Chavez props if indeed he refused to roll on his friend (and employer) his silence makes him a bigger man than I gave him credit for. That kind of loyalty is shown by few, and it is loyalty Galloway herself cannot be bothered to show the current mayor, and her former friend. Tom and Julie Tait both did back flips to support Galloway over the years, exposing themselves to some serious grief from the GOP establishment. Speak to them today and you can still see the pain in their eyes, realizing that someone they trusted completely, someone they were confident in turning their backs to safely, slipped a knife between the ribs when her loyalty was needed. I wonder if Chavez ever lies awake at night, wondering if Lorri would have taken the Federal charges for HIM?
While technically a loss, in that Fitzgerald is unable to use the statement, it is only incorrect because he was unable to show the Federal charges were linked to Chavez’ work on the Council, or his ties to Disney. Fitzgerald blew an opportunity there.
And lastly, Lodge pursued Fitzgerald for this little gem…
“Your vote for Denis Fitzgerald as Mayor can help stop the almost constant ‘giveaways’ of our tax money by the City Council to benefit Disneyland and other special interest groups.”
Petitioner failed to met his burden to show by clear and convincing evidence that the statement is false or misleading, and such statement can form part of a candidate’s statement of qualifications under Elect. Code 1307(a). Hammond v. Agran (199) 76 Cal.Ap.4th 181”
Now can you imagine the message that could be used come the first week in October as voters open their mailboxes in expectation of their absentee ballots? Huge block letters could proclaim, ‘Superior Court Judge supports candidate’s claim that “almost constant giveaways of our tax money benefits Disneyland and other special interests” or Judge rules “council corrupted!”
How do you even begin to defend yourself if you are The Mouse? The only thing that salvages the Kleptocracy in this issue is that Fitzgerald’s perpetual runs for office tend to not include actual funding. Without the ability to use that court ruling, layering an additional heap of credibility on his otherwise discredited run for office, it remains a useless piece of local history. However…the reference to the almost constant giveaways to Disney and special interests will hit the mailboxes of every voter in Orange County.
Those of us who attend or watch City Council meetings and have witnessed the level of hate speech and profanity Fitzgerald uses as an attention-getting device would think twice about offering any credibility to the statements, but how much the average voter pays attention and understands the source of those statements is very much up in the air. Will it connect Disney money for incumbents with a negative connotation?
The irony has to leave Fitzgerald seething, as Tait and his Pettibone-Vanderbilt slate stand to benefit from that attack more than anyone else, and while Fitzgerald has not, to my knowledge, weighed in on the “Team Anaheim” slate, he has said very hateful things about Tom Tait, and is quite convinced that he is a shill for Disney interests, merely pretending to be one of the good guys in order to mask his true intentions.
Dr. Jose Moreno
I am unsure of the case against Dr. Moreno, and a search for documents has not revealed case easily found on the other candidates, so I am unable to report on this right now. I am putting in a request to Dr. Moreno, asking him to share his views of the case if he will, and will report in if he offers insight. For now all I have in the final report on case disposition is this:
4. Real Party In Interest – Jose F. Moreno. Moot based upon parties’ stipulation and court’s 08/20/14 order.
Moving party to give notice.
The Court having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows:
Tentative ruling is now the final ruling as modified.
Counsel to submit a proposed order with all modifications and/or changes in accordance of the Court’s ruling.
But heading back into the cases, it is clear from the very poor leg work and irrelevant case law cited by attorney for lodge, Mark S. Rosen, that this just might not be the kind of law he practices on a regular basis. If this is so unfamiliar to him that he fails to grasp precedent to use in support of his client’s claims, then how did Lodge find and connect with this fellow?
It turns out that Mark S. Rosen also represented Gail Eastman, Kris Murray, and Shirley McCracken (uh SHIRLEY?!) in Superior Court case 30-2014-00736041-CU-WM-CJC against Fitzgerald and his ballot statement regarding District Elections. We will come back to that because it turns out to be an interesting case, but I am aware of time and space limits here.
What does need to be considered is why Steven Albert Chavez Lodge, Kris Murray, Gail Eastman, and Shirley McCracken (huh?) have all found themselves allied with the friend and lawyer of … Miguel Pulido? Are we beginning to smell the stink of a Pringle connection once again?
Stay tuned…silly season has only just begun. The Masters of the Universe have a tremendous amount of work left to do – after all, the carcass of Anaheim’s civic treasury still has meat left on the bones, and we can’t have THAT happening, not before Pringle gets to purchase his own private island as an escape pod, leaving a future in which the lowly unwashed masses endure 15 minute call response times for emergency services when their bond issues collide with pension obligations and Anaheim cannot hire new cops.
But that dismal future is not spelled out just yet in campaign mailers, which paint a rosy picture of prosperity, a picture worth fighting to the death over in the minds of the former Mayor turned lobbyist and his flying monkeys “Fly my pretties, fly! Fly!” It is their rosy future that they are protecting, certainly not Anaheim’s – indeed, their prosperity results in a future where the lowly unwashed masses are likely to endure 15 minute response times from public safety calls, once the bond payments of their flashy projects kick the obligations down the road to future generations, colliding head on with the gullible and culpable public safety unions (yes that would be YOU Kerry Condon) and the unsustainable pension payments promised to unionized labor by “leaders” who care more about their own reelection than their city’s future financial health.
Oh yes, we will be back to look at all of it. And we will take a hard look at who is behind these little spending schemes, and who is paying for them.
Starting with, ”Who is paying Mark S. Rosen’s fees?”