Legislative Change Proposal, California Judicial Elections

Dear Governor Newsom and California legislators:

I write to suggest that you initiate a legislative change of Section 13107 of the California Election Code. The 2018 change of the Code made it virtually impossible for anyone but prosecutors (“deputy district attorneys”, hereinafter “DDAs”) and certain other government attorneys to become elected judges. This is highly inequitable for other types of candidates and thus democratically undesirable. This issue requires urgent attention. A legislative change would have no fiscal effect.

Recommendation:

Section 13107 should be changed so that only the ballot designation “attorney at law” can be used by anyone running for office. Allowing DDAs and others already in government employ to continue using both their full titles and locations (e.g. “Maria Smith, Deputy District Attorney of the County of Los Angeles;” no less than eleven words compared to the three allowed for others) gives that candidate a demonstrable and unfair advantage over non-DDA and non-government candidates. No one else than DDAs (or, more rarely, other government attorneys) can win under the current wording of the law. This effect is highly undemocratic and undesirable given the need for diversity in government structures including the judiciary.

Legislative history:

Before 2018, numerous prosecutorial candidates for judicial office chose designations that were seen as “disingenuous and histrionic” such as ‘Hardcore Gang Prosecutor,’ ‘Sex Crimes Prosecutor,’ ‘Gang Homicide Prosecutor,’ ‘Criminal Gang Prosecutor,’ ‘Gang Murder Prosecutor,’ ‘Major Narcotics Prosecutor,’ ‘Criminal Murder Prosecutor,’ ‘Criminal Homicide Prosecutor,’ ‘Child Molestation Prosecutor,’ ‘Government Corruption Prosecutor,’ ‘Violent Crimes Prosecutor,’ or ‘Sexual Predator Prosecutor’¹. The law was altered to prevent such overly suggestive designations.

Current law:

The current version of Section 13017 took effect for “all judicial elections held on or after January 1, 2018.”² In pertinent part, the law that relates to ballot designations allows prosecutors (“deputy district attorneys”) to use “[w]ords designating the actual job title” and, since prosecutors are employed by the county in which they work, the word “County of.” California Election Code §13107(b)(2)(A), 3(B). Thus, the ballot designation of a prosecutor running for office will be “Deputy District Attorney, County of Los Angeles.”

In contrast, candidates for judicial office who are not prosecutors may only use “[n]o more than three words designating either the current principal professions, vocations, or occupations of the candidate….” California Election Code §13107(b)(1)(C). (The designations “attorney” and “lawyer” may also be used in connection with a candidate’s principal profession.). Thus, a “regular,” non-governmental attorney may only use the ballot designations “Attorney at Law,” Attorney,” or “Lawyer.” Some candidates who have two job functions have run as, for example, “Attorney, Radio Producer” or “Law Professor, Attorney.” Those ballot designations comply with the three-word limit, but place such candidates at a great disadvantage compared to government attorneys, especially DDAs.

Effect & analysis:

Year	DDAs	Other gov’t atty	Regular atty
2020	11	1	0
2018	5	6	0
2016	3	4	0
2014	14	1	0
2012	3	3	0
Total	36	15	0

Winners in LA County Superior Court Judge elections and ballot designations

Of 51 elected judges, zero were non-prosecutors or non-governmental attorneys. Zero.

As you can see, in 2018, eleven judicial seats were filled via the election. Six seats went to DDAs, two to existing judges, two to commissioners (a judicial function), and one seat to a senior deputy county counsel.³ No a single candidate not already in government service won!

In 2020, twelve judicial seats were filled by no less than twelve candidates with prosecutorial backgrounds. Eleven out of twelve were DDAs. Once again, not a single regular attorney won!⁴

It has become clear that DDAs and select other government attorneys enjoy a vastly unfair advantage currently that is undesirable seen from public policy and democratic angles and that they are crowding the field of elections, preventing others from becoming elected and thus preventing the diversity in professional backgrounds that is called for by numerous constituents and government leaders alike.⁵

In short, it has become abundantly clear that the current version of the Code has the effect that only prosecutors can get elected to office. This is so because judicial candidates are among the least known on the ballot despite large amounts of money and effort being spent on these races, which end up in positions held until the elected judge retires, often only after decades of bench service. The playing field is simply not level for candidates. This must be rectified given the unfortunate reality of voters either not voting at all for judges (in 2020, only approx. 50% of voters voted for judges) and/or not informing themselves sufficiently about the judicial candidates. While voters of course, should, reality is clear: they do not. They simply vote for “fancy”-sounding titles.

Proposed change:

Section 13107 of the California Election Code should be amended so that all judicial candidates are only allowed to use one ballot designation: “Attorney at law.” All candidates are, in fact, attorneys. This would create equality in ballot designations, thus removing the clear advantage that, primarily, DDAs and, secondarily, other government attorneys have.

In a modern democracy, it is key that elections are as fair and impartial as possible. This is far from currently the case. Once election-related issues become apparent, they must be rectified as soon as possible. Only prosecutors can, in effect, become elected after the 2018 legislative change. The law must be amended again as soon as possible to reflect currently reality in relation to judicial elections.
If everyone runs with their “true” designation only (attorney at law), everyone will be on a level playing field; the optimum democratic starting point, and voters will have to inform themselves more about the individual candidates, also desirable.

Because of an intense workload, I do not currently have the resources to lobby for this important legislative change. I hope and trust that one or more of you will take up the issue. Of course, feel free to contact me should you have any questions about this. Because of COVID, I can best be reached via my private email (myanna.dellinger@nullgmail.com).

Respectfully,

Myanna Dellinger, JD, M.Sc., PhD candidate
Professor of Law

Cc:
Josh Becker, Steven Bradford, Anna Caballero, Wendy Carillo, Ed Chau, David Chiu, Jim Cooper, Laurie Davies, Maria Elena Durazo, James Gallagher, Mike Gipson, Steven Glazer, Eloise Gómez Reyes, Lorena Gonzalez, Chris Holden, Melissa Hurtado, Reggie Jones-Sawyer, Ash Kalra, Kevin Kiley, Alex Lee, Monique Limón, Brian Maienschein, Richard Pan, Susan Rubio, Miguel Santiago, Nancy Skinner, Mark Stone, Buffy Wicks, Scott Wiener