Weekend Open Thread: Big Ballot Battles!

I still haven’t had time to cover any of the many items sitting my queue — paean to Judge Carter, more on BOE-4, Brea’s fight against districting, whether Farrah Khan is a cannibal (I say: no she isn’t!), HB lunacy, and a few others — so I’m taking the easy way out by commenting on a Voice of OC story where I think I have some relevant expertise.

This story by Nick Gerda — How Truthful Does a Candidate’s Ballot Statement to Voters Need to Be? — nicely covers the current primary election ballot designation and candidate statement lawsuits percolating up towards closure. As someone who partly prevailed in the 2018 Lenore Albert ballot designation case mentioned in the story and who lost against Mark Rosen while prevailing against Steve Baric in a MWDOC some years before, among others, I think that I can offer a useful perspective on something that most people don’t care about.

Gerda frames the question as one of “truthfulness,” but there are true things that one could plausibly want to say in a ballot designation or candidate statement that are nevertheless not permitted by law. (An attack on one’s opponent by name is the most obvious one.) So let’s take a quick run through the ones he mentions. I’ll leave the biggest one that takes up the brunt of Gerda’s piece until the end.

1. Is Bryan Maryott entitled to call himself a Certified Financial Planner? Not when he hasn’t been a Certified Financial Planner for over three years. He might be able to call himself a “financial planner” if he derives a certain amount of income from doing non-certified financial planning, but for all I know that might create more problems for him. This was the work of some fancy Sacramento lawyers, not our home county players.
   
2. Can Vicente Sarmiento note in his candidate statement that he is candidate statement that he is endorsed by the Democratic Party, even when he’s running for a non-partisan office, i.e., County Supervisor? I think that it is certain enough that he can — just like he can mention other endorsements — and I expect that there are multiple precedents showing this to be allowed available in the archives. The issue is whether citing such endorsement constitutes a declaration that he is affiliated with, a member of, or engaged in the activities of, the Democratic Party. The only thing that the statement actually conveys is that the Democratic Party voted to endorse him. That itself doesn’t lay law make him a member, just as his endorsement by the Labor Federation makes him a union member. Nor is it an “affiliation” or a statement that he engages in their activities. The counterargument here may be that the Democratic Party of Orange County does, according to its rules, endorse only Democrats, but it is not a legal requirement; most voters probably don’t know that the DPOC has such a rule. And, trust me on this one, the Democratic party could simply decide in a given case to quietly ignore its bylaws and waive its rule at any time. (Trust me on that one.) I suspect that the Plaintiff in this case (and I don’t know who Ivana Unger is, but she’s being represented by my old colleague, top Republican Party election lawyer Chad Morgan) may end up paying Sarmiento’s attorney fees.
   
3. Can judicial candidate Ray Brown’s note in his candidate statement that he has “served for 9 years as a temporary judge on the OC Superior Court”? This is an interesting issue, brought on behalf of someone by my friendly election law antagonist Mark Rosen. Rosen, a conservative Democrat, notes that the policy of the OC Superior Courts includes requirements, under Paragraph 4, that lawyers serving as Temporary Judges may not make false statements about their services and, more to the point, that they cannot use the title of “judge” for personal or pecuniary (meaning profit-seeking) interests. Here’s the kicker: “The use of the title is forbidden … on ballots, ballot statements, and resumes,” etc. Okay, but is that what Mr. Brown has done? I read “use of the title” to mean something like calling himself “Judge Ray Brown” or “Temporary Judge Ray Brown” or “Former Temporary Judge Ray Brown.” Those would clearly be forbidden. But, I’m not convinced that referring to the fact of one’s having served as a Temporary Judge — which would seem to attest to an attorney’s perceived trustworthiness in making at least some judicial decisions — is misusing the title itself. It’s just appropriately pointing out a pertinent fact.
   
   BUT, I think that Brown’s statement is vulnerable to challenge on a different ground! “Serving for 9 years as a temporary judge” would, I suspect, convey to a voter that he was actively in service for 108 months, as opposed to there simply having been a 9 year period during which he may have been eligible to be called to serve anywhere from zero or one times to “full-time temporary work.” This is, I’d think, misleading, as it undercuts the term “temporary.” If I were the judge, I’d trim it down to the number of times he actually served as a Judge Pro Tem over that period. If it’s a large number, great for him; if it’s a small number, his use of it as his opening pitch would likely end up embarrassing.
   
4. Can judicial candidate Ben Stauffer’s ballot designation refer to his previous tenure as a Deputy District Attorney? This is another one from Chad Morgan. The gravamen of this case is whether someone who resigned from a Deputy DA position the District Attorney’s office in July 2021 use the title of “Deputy District Attorney” on his ballot statement for June 2022. The subtext is: “after all, you let Brahim Baytieh do it!” There’s more what other options arguably should have been available to him, but this is the main point. While technically one can use any designation describing one’s primary occupation or avocation for the previous year — although offhand I’m not actually sure whether that year dates back from the election date or from the date of filing — there has to be some limit on when one’s avocation throughout the previous year becomes stale. In this case, Stauffer was an “Attorney-at-Law” throughout that entire time, but — depending on when we start counting — actually earning his living as a DDA for somewhere between a minority of that time and a small sliver of that time. Baytieh, in contrast, was fired by the DA’s office — under what I’ll gently says seem to have been politically inflected circumstances — only shortly before filing began. To the extent that there is any balancing of interests to be had in such a determination, it certainly weighs more heavily for Baytieh than for Stauffer. I’d want to read the defendant’s argument before offering my own opinion on this one, but I suspect that I wouldn’t rule for Stauffer.
   
5. Was Lenore Albert entitled to call herself an attorney in the 2018 election? Gerda brings up this case as an example of a defendant winning. Having been the Plaintiff’s attorney, I think that I should comment here. It is true that the State Bar (cynically, in my view) reversed itself on June 1 and retroactively un-suspended Lenore. At that point it was too late for her to be called an “attorney” in the primary election anyway — and the damage to endorsed Democratic challenger Brett Murdock, who could only have raised enough funds to win had he been the sole Democrat running against Republicans Tony Rackauckas and Todd Spitzer, had already been done. The actual case, though, regarded whether Lenore did, and whether she had to, file the form declaring her present eligibility to serve as District Attorney, which was due at the time of filing, and which was clearly not satisfied at the time of filing. Having run for DA myself (as a sacrificial lamb) four years earlier, I recall that the form was represented to me as mandatory at the time of filing, and I believed (and argued) accordingly. I recall having informed Judge Griffin the portion of the Election Code that I argued established this requirement, and I did not and still do not know why he considered the possibility of her being reinstated before June 5 had any bearing on what she did back in March. I started to appeal the decision until I realized that the costs would be prohibitive. Lenore appealed the use of her ballot designation and, despite my still being wracked by the effects of my stroke at the time, lost. So technically Gerda is right — but it’s a little misleading.
   
   On to the main event: Can Peter Hardin’s Candidate Statement describe the D.A.’S office as “plagued with scandals”?
   
   Pete Hardin’s ballot statement asserts that “Orange County used to be one of the safest places in America,” Todd Spitzer — through his attorney Mark Rosen — is OK with that. What he objects to is what comes next:

“The District Attorney’s office is plagued with scandals., from rampant sexual harassment and racism that has undermined the prosecution of dangerous offenders, to pay-for-play political corruption and criminal misconduct. Furthermore, a man that sexually assaulted multiple women was promoted after allegations of his misconduct were reported.”

First, I think that we should all be able to agree on one thing: it should be “a man who” rather than “a man that“…. Beyond that, things get ugly and muddled, and I think it would be useful for people to read what Rosen (based largely on the writings of the OC Register’s Tony Saavedra have to say about the matter in Spitzer’s complaint. (I’d be glad to link the Hardin’s response here as well if someone wants to send it to me.)

Rosen’s position is two-fold. First, that in his statement (reproduced in Exhibit A of the complaint) Hardin has violated the proscription against referring to other candidates in that office or to their “qualifications, character, and activities,” given that the candidate statement is supposed to be limited to his own merits for the job; second, that that the accusations made against the DA’s office are in any event substantively false. Bearing in mind that I have not read Hardin’s response, I think that this challenge raises a number of interesting questions.

1: Is a criticism of the DA’s office ipso facto (meaning “due simply to that fact”) a criticism of Spitzer’s own “qualifications, character, and activities”?

2: Is identifying deficiencies in the DA’s office addressing Hardin’s own qualifications?

I think that the first question is a close call: scandals in the DA’s office certainly do implicate Spitzer, either for his own actions or for deficient hiring and/or supervision, but they don’t do so directly, so I’m not sure that the statutory language actually reaches this sort of thing. implicitly Hardin’s pitch here is that “I won’t do things like this!” I suspect that there’s enough distance between naming Spitzer and calling out the D.A.’s office that this is permissible (and I have little doubt the Rosen could argue the other side of a case like this if he here were hired to do so.) I also think that identifying things that one pledges not to do is a fair statement of one’s own qualifications. I couldn’t afford a candidate statement for a countywide office in 2014, so I don’t recall this coming up, but I certainly campaigned on my pledging not to allow the likes of the snitch scandal to proceed, and I felt that this said as much about my qualifications as about Rackauckas’s deficiencies. Furthermore, if memory serves, Spitzer himself brought up deficiencies in the DA’s office as part of his campaign statement, and that would be subject to the same criticism.

My sense is that generally the requirement that campaign statements have to be solely about one’s own qualifications, etc. is not very harshly construed. Look at the first five paragraphs of Hardin’s statement, of which Rosen objects only to all but the first sentence of Paragraph 4. (I’m here considering the lumped together statistics as one single paragraph.) But none of them have to do with Hardin’s own qualifications, and “We need a new District Attorney” in Paragraph 5 is, in the context of the scary statistics preceding it, more clearly about Spitzer than anything else. Yet removing these is not part of the demanded remedy.

On first reading, I thought that I was going to be much more favorable towards Rosen’s first claim than the second. I don’t think I’d find for Spitzer on the first statement … and now you’re going to see whether my first impression was wrong on both.

Exhibits B and C are two articles in the Register by Tony Saavedra that address two of the former complaints about the DA’s office: respectively, the whole Gary LoGalbo situation (special to Nick Gerda; correct it from “Lary”) and the “pay-for-play” practices leveled by former investigator Damon Tucker against former DA investigator Tom Conklin, supervisor Paul Walters, and Spitzer. After reading the article, combined with my own past knowledge, it seems to me that the LoGalbo accusations — cleared by an “independent investigator” hired by the county, which wants to prevent having to pay out money over these actions — are viable targets for legitimate criticism. (That’s not a conclusion, just that to me it passes a threshold into reasonable discussion.) The Tucker accusations, in contrast — much as I’d be willing to believe ill of Paul Walters — don’t seem well-aimed as an implicit or explicit criticism of Spitzer himself, or of how Hardin would be better in this situation. (Would he have done things differently? How and why?)

Spitzer gets off some good speechifying about these assertions: “This is nothing more despicable than an unethical cop misusing taxpayer resources to dig up dirt for his friends on a political enemy,” and “This reopening of a closed investigation was nothing more than an orchestrated act of utter desperation by Tucker, Rackauckas, and their cronies to attempt to find anything they could to influence the outcome of the November election,” and “Tucker was captured on audio tape reiterating his plot to the other police officer to get dirt on me. That agency confirmed to the OCDA that there [it has] no reports regarding me….”

All of this is supposedly in the service of an assertion that defense attorneys who donated to Spitzer’s campaign received favorable outcomes from the OCDA. This is a dynamite accusation, potentially devastating to Spitzer’s campaign (and freedom!) if proven — and I think it’s fair to believe that “extraordinary claims require extraordinary proof.” I don’t see that proof here. So far, to me, the incendiary “pay for play” accusation seems unsupported.

All of this points out the wisdom of not allowing personal attacks on rival candidates in candidate statements!

The real question in my mind is: what’s a judge supposed to do with all of this crap? First, should the entire paragraph be tossed out? If not, on what basis would the judge pick and choose? Does this really have to be a “mini-trial” on the veracity or plausibility of each claim — using, in part, reports in the Orange County Register as evidence?

That seems absurd. And yet — it’s not that far from where I come down.

With apologies to Todd Spitzer, I think that there is enough evidence out there (much of it not in the Saavedra article) that Gary LoGalbo was doing some really bad stuff within the DA’s office and was not stopped as quickly as anyone (Spitzer included, I’d bet) would have liked. Supervision of highly empowered subordinates is part of what a DA is supposed to do, and while some of the criticism of Spitzer re LoGalbo seems inappropriately incendiary — one shouldn’t mention that LoGalbo was the best man at Spitzer’s wedding without noting that he was Spitzer’s wife’s close friend rather than his, and that while you can pick your spouse you can’t always pick your spouse’s friends and relations — it seems fair to me that Spitzer’s DA’s office (which doesn’t necessarily imply any hands-on acts from Spitzer himself) is vulnerable to criticism on that point, in which Hardin can argue that he’d do a better job of hiring and supervision.

With apologies to Pete Hardin, to take one example, I think that the on-the-record evidence of a “pay-for-play” scandal during Spitzer’s tenure is skimpy at best, and that being so there is little basis for Hardin to claim that he would be better than Spitzer in avoiding “pay for play.” So if I were the judge, I’d excise that little gem from the candidate statement.

With apologies to Judge Nathan Scott — or to whichever other judge takes over the case if Judge Scott calls in sick that day — I don’t think that there’s any good shortcut here other than going through the disputed paragraph claim by claim. What the Judge can do, though — and in my experience it’s not unusual in election these cases — is to mediate the dispute to the point where the parties can grudgingly accept a negotiated outcome.

So let’s list the disputed points:

(1) The District Attorney’s office is plagued with scandals, (2) from rampant (3) sexual harassment (4) and racism (5) that has undermined the prosecution of dangerous offenders, (6) to pay-for-play political corruption and (7) criminal misconduct. Furthermore, (8) a man that sexually assaulted multiple women (9) was promoted after allegations of his misconduct were reported.” And, I think the court should also consider Spitzer’s contrary allegations that this is all a hit job by cronies of the former DA — of which Hardin may or may not be one — to sully him before the November election (which, incidentally, ignores the fair likelihood of this being decided in June.)

(1) “Plagued” with scandals is inappropriately incendiary. I’d put the parties to accept “beset” with scandals. If they didn’t agree, I’d jail them. (No, I’m kidding about that. But I would make it a strong suggestion.)

(2) Based on the evidence at hand, “rampant” seems to overstate the case. (And let’s recall that, so far as I can recall, LoGalbo has not yet been criminally convicted or civilly defeated on anything.) I’d try to get them to agree on “multiple credible accusations of”.

(3) OK as is.

(4) The “racism” accusation hovering around this case seems to stem from Spitzer’s weird free associations about why Mr. Jamon Buggs may have wanted to associate with (or date) white women. That’s the only one related to #5 below. It’s certainly not “rampant” and it’s arguably not invidious “racism” so much as acute sudden onset cluelessness. I’d take it out, but include it with #5 below.

(5) What Spitzer’s reported actions regarding Buggs actually <i>did</i> was to in effect preclude the possibility of seeking the death penalty — in violation of Marsy’s Law. Buggs, an accused “dangerous offender,” was still “prosecuted.” So I’d combine #4-5 into “intemperate remarks about race have precluded seeking the death penalty for an accused murderer.” Maybe this is too specific, but it’s something where Hardin can credibly argue “I’d do better.”

(6) “Pay-to-play political corruption.” This is incendiary and aimed right at Spitzer personally. I think it comes out. If there were an active judicial case on this matter, I would likely feel differently, but this is getting away with too much.

(7) If Hardin can give a good explanation of what he means by “criminal misconduct,” maybe this stays in — but I don’t see it so far. Is a violation of Marsy’s law a criminal offense? (Should it be, Todd?) Is this just about “pay-for-play”? I’m not optimistic that this would stay in — but maybe.

(8) I’d combine this with #2 to give us: ” “One prosecutor who faced multiple credible accusations of sexual harassment [were any of physical assault?] was promoted after the allegations of his misconduct were reported.”

This would leave the disputed paragraph as follows:

The District Attorney’s office has been beset with scandals, from multiple credible accusations of sexual harassment by a prosecutor (who was promoted after the alleged misconduct was reported) to intemperate remarks about race that precluded prosecutors from seeking the death penalty for an accused murderer.

I’m reasonable confident that this would be acceptable to both sides, but also pretty confident that it would thread the needle between impermissible criticism of Spitzer himself and allowing Spitzer to unjustifiably block criticism of his department’s actions where his opponent can rightfully assert that he believes he can do a better job. And that, dear readers, is one reason why I’ll never be a judge — even a Temporary Judge. The view is nicer from the sidelines!

Whatever else it may be, this is also your Weekend Open Thread, where you can talk about this or whatever else you would like within reasonable bounds of discretion and decorum.