Notes From Babel

Analysis of the Spat over California AG Candidate Eastman’s Job Title Designation

with 4 comments

A bit of controversy flared up yesterday surrounding California attorney general candidate John Eastman’s ballot designation concerning his job title.  According to the LA Times:

Republican attorney general candidate John Eastman has chosen the job description he will show voters on the June ballot: assistant attorney general. What he isn’t saying, though, is that he is an assistant attorney general in South Dakota.

One of his opponents, LA County District Attorney Steve Cooley, is accusing Eastman of “intentionally trying to mislead and misinform voters.”

Cooley’s criticism is a little thin.  Elections Code section 13107(a)(3) provides that a candidate must adhere to the following criteria in listing his or her job description:

No 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.

(Emphasis added.)  Subdivision (b) further provides:

(b) Neither the Secretary of State nor any other elections official shall accept a designation of which any of the following would be true:

(1) It would mislead the voter.

Andal v. Miller, 28 Cal. App. 4th 358, 364 (1994) interprets section 13107(a)(3) as follows:

The California Supreme Court has noted that “[a] major purport of the Elections Code is to insure the accurate designation of the candidate upon the ballot in order that an informed electorate may intelligently elect one of the candidates.” (Salinger v. Jordan (1964) 61 Cal.2d 824, 826, 40 Cal.Rptr. 361, 395 P.2d 49.) To further this purpose, the Secretary of State has issued guidelines for selecting ballot designations.3 These Guidelines define a principal profession, vocation, or occupation as “the primary job or work one does which is the means of livelihood or production of income, as opposed to a hobby or avocation. Some persons may work at more than one profession, vocation, or occupation. Exceptions may apply for persons retired or unemployed by choice or by circumstance. No designation which connotes a status is acceptable. Examples of unacceptable status claims include ‘parent’, ‘taxpayer’, ‘citizen’, ‘patriot’, ‘renter’ and ‘presidential appointee’. [¶] … A candidate may use either his or her current principal profession, vocation or occupation, regardless of the amount of time in which the candidate has engaged in such or, in the alternative, any principal profession, vocation or occupation in which the candidate was engaged over the course of the previous calendar year even though it may no longer be one in which the candidate is currently engaged. In choosing between the alternatives, the candidate must ask himself or herself: ‘What is my primary job right now?’ and ‘What was my primary job last year?’ Either job, if otherwise proper, based on the statutory criteria, may be used as a ballot designation.” (Guidelines, pt. II.C.1. & 2., p. 4.)

(Emphasis added.)

Now let’s take a look at Eastman’s role as South Dakota’s assistant attorney general.  As the LA Times explains:

Eastman is being paid $20,000 by the South Dakota attorney general to work on one case, according to documents provided by his campaign. Working on the South Dakota case is Eastman’s “primary professional occupation,” according to documents he filed with the state.

. . . .

In January, Eastman resigned as dean of the Chapman University Law School Law in Orange. Since then, his “primary professional occupation” is working on a U.S. Supreme Court case on behalf of South Dakota Attorney General Marty Jackley.

The Sacramento Bee further reports that “if [Sisney v. Reisch] reaches the U.S. Supreme Court, [Eastman] anticipates receiving at least an additional $100,000, documents show.”  Ken Blanchard further describes Eastman’s role as South Dakota’s assistant AG as follows:

As for the South Dakota angle, John is a very fine legal talent for us to secure in Reisch v. Sisney, No. 09-953. He clerked with Supreme Court Justice Clarence Thomas; he has written numerous briefs for court cases and participated in a number of high profile state cases; he is dean of a law school. The case involves a state prison inmate who is challenging the way kosher food is prepared at the prison. Charles E. Sisney brought suit “under the federal Religious Land Use and Institutionalized Persons Act for alleged interference with his ability to practice his Jewish faith.”

Eastman is listed as attorney for the petitioners (that’s basically us, the State of South Dakota). If the Supreme Court decides to hear the case, Eastman will appear to argue it on our behalf.

Thus, it is clear that “assistant attorney general” is one of Eastman’s “current principal professions, vocations, or occupations” under Elections Code section 13107(a)(3).  Since resigning as Chapman’s law dean—a sore loss for the school and the legal community as a whole—his assistant AG job now appears to be Eastman’s “primary job or work [he] does which is the means of livelihood or production of income.”  Andal, 28 Cal. App. 4th at 364.

But what Cooley is really bothered about is that listing “assistant attorney general” in a race for the office of California attorney general is purportedly “misleading,” as he claims it would suggest to voters that Eastman is in fact California’s current assistant AG, rather than South Dakota’s.  First of all, let’s go right back to where we started in Elections Code section 13107(a)(3): a candidate’s job description must be “No more than three words . . . .”  “Assistant Attorney General” just about does it for the word limit.  What word might Cooley suggest Eastman scrap in order to fit “South Dakota” in there? “Assistant”?  That would certainly be misleading.  “Attorney”?  Whoops, wrong profession altogether.  Not a lot of options there.  Simply put, the statute simply does not permit Eastman to list a job description any more precise than the one he’s already designated.

Moreover, the listing of a candidate’s job description does not generally require inclusion of the location or jurisdiction of the job.  A business owner wouldn’t need to name his company, nor a teacher the school district wherein he teaches.  Ironically, Eastman could well suggest it is he who stands to be harmed if voters misinterpret he has had any affiliation with California’s mismanagement to date.  In any event, the job description is meant to simply suggest the candidate’s general qualifications—that is, the what, not the where or who.

Of course, I’m sure Eastman appreciates the free publicity.

You should also read the rest of Ken Blanchard’s piece on Eastman here.

UPDATE: As it turns out, it does appear that Section 13107(a)(3) likely would permit the hyphenated form of “Attorney-General” to count as one word, as it appears in the Shorter Oxford English Dictionary (2002).  Thus, the Secretary would ostensibly permit the job description “South Dakota Assistant Attorney-General” (states count as one word, also, even if they’re really two).  Be that as it may, it still stands that no geographical requirement has been imposed for other candidates or other occupations.  In fact, Los Angeles District Attorney Steve Cooley, one of Eastman’s opponents, did not specify for which of the 57 California counties he is D.A. in his ballot description.  Is there a possibility voters would be misled into believing Cooley is their D.A.?  Of course.  But that is not the standard under Section 13107(b)(1), which gives the Secretary discretion to reject designations that “would mislead the voter,”or under Section 20716(c) of Title 2 of the California Code of Regulations, which requires the Secretary to determine that “there is a substantial likelihood that a reasonably prudent voter would be misled” by “taking into account the plain meaning of the words . . . and the factual accuracy of the proposed ballot designation . . . .”  In three short words, a candidate may not be able to prevent some voters from making unwarranted assumptions.  But the Secretary of State should not require candidates to use one of those three words to affirmatively mislead voters—e.g., require Eastman to offer geographical information irrelevant to his job qualifications that would suggest to voters that he doesn’t even live or work in this state.

More good info here, including Eastman’s petition against the Secretary.

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Written by Tim Kowal

March 19, 2010 at 11:28 pm

4 Responses

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  1. It’s bizarre to see a Ken Blanchard that’s not the one I know
    http://www.kenblanchard.com/About_Ken_Blanchard_Companies/Keynote_Speakers/Ken_Blanchard/

    Mark

    March 20, 2010 at 10:50 am

  2. Is Eastman simply hired as an outside counsel for the South Dakota AG or is he actually given the title “Assistant Attorney General” by the South Dakota AG?

    Ben Pugh

    March 22, 2010 at 1:00 pm

  3. From the Eastman Campaign, and posted at FlashReport:

    On February 23, 2010, I was appointed Special Assistant Attorney General by South Dakota Attorney General Marty J. Jackley to represent the state before the Supreme Court of the United States in Reisch v. Sisney, No. 09-953. Attached is the appointment certification. Under South Dakota Codified Law 1-11-5, the South Dakota Attorney General is “authorized to appoint assistant attorneys general as he may deem necessary on a part-time basis for special assignments.”

    The appointment is available here.

    Tim Kowal

    March 22, 2010 at 1:21 pm

  4. I object. Eastman’s job description should be “Special Attorney General.” If you have only three words, and you have to pick between “Assistant” and “Special,” who would want to be a mere “Assistant” when one could be “Special”? He would have to take the short bus to the Supreme Court oral argument, though.

    Ben Pugh

    March 22, 2010 at 4:13 pm


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