JP Election Brief: Candidate controversies

The JP Election Brief
Pulling back the curtain on the drama of judicial elections
In this issue...
Election news from: Texas, Nevada, Arkansas,  North Carolina, California, Indiana,  Oklahoma and Florida

April 17, 2014

by: State Courts Staff

Political strategy has become the name of the game as judicial candidates search for ways to win over voters. Issues related to everything from fraud to qualifications are being decided by the courts as filing deadlines pass and campaigns kick into high gear. In California and Oklahoma, a few candidates got good news. Meanwhile, a race in Nevada took an ugly turn after allegations of bribery emerged. Judicial candidates in one Texas county face lawsuits over alleged illegal voting in the state's primary. Candidates in Arkansas are breathing a sigh of relief after learning they'll likely qualify to remain on the ballot. Campaign finance reports indicate candidates are starting to raise the funds they'll need to run for seat on courts in Florida. Those running for judge in one Indiana county also took the opportunity to get to know voters.

Important dates: Elections: No primary elections during the month of April. Filing deadlines: 4/24: New York 5/2: Florida

Accusations of fraud in Hidalgo County primary

Texas:

Candidates who ran in three Texas judicial races have been accused of manipulating the March 4 primary race through "illegal votes", but candidates have denied the allegations.

Those being sued are Jaime Munoz and Eloy Trevino (candidates for Hidalgo County justice of the peace), Omar Maldonado (for the Hidalgo County Court at Law No. 8) and Luis Manuel Singleterry (for the 92nd District Court). They have been sued by the candidates they defeated in their respective races. The winning candidates have argued that the court lacks jurisdiction over the election. They say the plaintiffs’ lawsuits only examine one instance of a voter who faced difficulty at the polls.

In response to this, plaintiff Hortencia Martinez (who is suing Munoz and Trevino) said she believes more than one voter encountered problems but that these others may not have known or may have been too "afraid" to report the issues. She also commented,

“	I had over 4,000 people that I know: family, relatives or people I know—church family—who went out to vote. It doesn't go with the numbers I got. ...I just want the truth, that's it. If there's another election, or if there's not, whatever, I'm going to be content and happy.	”
—Hortencia Martinez

Meanwhile, defendant Munoz expressed an eagerness to put the matter behind him:

“	[O]ne, I've got nothing to hide, and two, I trust in our Hidalgo County Elections Department. When they represent to the community in a public meeting that nothing went wrong with the system, it's not fair for losing candidates to file frivolous lawsuits to slow down our election process. I have a runoff I need to get ready for, but instead of getting ready for the runoff, I have to defend three lawsuits.	”
—Jaime Munoz

Munoz countered by filing a petition of his own in which he accused plaintiffs of filing their lawsuits "in bad faith for the purpose of harassment." He seeks to be reimbursed for costs and attorney fees as sanctions under Texas Rule of Civil Procedure 13 and Texas Civil Practice & Remedies Code §10.001. Martinez insisted that it was never her intention to harass Munoz, she was simply abiding by the protocol laid out in the Texas Election Code. A person contesting an election's result must file their suit against the winner, or winners, of the race.

Hidalgo County Criminal District Attorney Rene Guerra is said to be investigating potential “criminal conduct.” Hidalgo County Elections Administrator, Yvonne Ramón, has also written an email reassuring voters that she ran "a very clean and transparent election," and that she is invested in the integrity of the elections system.

“	I want to assure our community that I have multiple internal and external security measures in place, and I respect any and all who have concerns, as their concerns are my concerns. We are at a point where we must respect the judicial steps that have been taken and allow the judicial system to do its job.	”
—Yvonne Ramón

Accusations made in Clark County district court race

Nevada:

In one of the many races for the Eighth District Court of Nevada, Randall Tindall, a defense attorney for Farmers Insurance, is challenging Judge Rob Bare for the Department 32 seat. Some controversy around this race was recently investigated by the Las Vegas Review-Journal. Tindall, in a sworn affidavit, accused political consultant David Thomas and Las Vegas attorney Robert Eglet of trying to bribe him to drop out of the race against Judge Bare.

Tindall said he filed against Judge Bare on January 17 because he had a low opinion of him as a judge, and he had no challengers. The day marked the end of the candidate filing period for judges, which, according to the Review-Journal, typically involves some degree of political scheming. However, the offer from Thomas allegedly went beyond the normal talk of convincing people to drop out of a race. Tindall wrote in his affidavit:

“	"Mr. Thomas then approached me. As he read from his cellphone (or at least gave the impression he was reading from it) he told me the following: 'Hey, Bob Eglet just texted me and says he doesn't want anyone running against Rob Bare. So, if you'll get out of the race against Bare and into the one against Valerie Adair, he says he'll foot the bill for your campaign.'	”
—Randall Tindall

Thomas, who is known as the "judge maker" for his successful record of getting judges elected, denied the claim, saying it was "a complete fabrication." Eglet, a successful attorney who has landed some of the largest awards in U.S. history, said he did not text the offer to Thomas. He also said that he supported Valerie Adair, a district court judge who faces no opposition this year.

Judge Bare, who is being represented by Thomas, said he talked to him about the situation. Regarding their conversation, he stated:

“	Dave tried to steer the guy somewhere else. I had no idea Dave was doing this; it’s part of the protocol. The conversation was about a minute long, and his main objective was to tell me I got an opponent and tell me about this back-and-forth between him and Tindall.	”
—Judge Rob Bare

Bare went on to say that Tindall was the one who suggested the funding idea. The judge said that Tindall asked Thomas if he would be interested in funding his campaign if he were to switch to another race. He mentioned that a monetary amount of up to $150,000 was thrown around. Bare also called Tindall "a wild card, an oddball, a not-to-be trusted person."

According to Tindall, he asked for a text message from Judge Bare offering the deal, but Thomas refused. Tindall stated that he was looking for evidence of bribery.

Without that evidence, it remains unclear what actually happened. What the Review-Journal did uncover, however, is that the world of judicial politics in Clark County often involves political gamesmanship, though it may go unpublicized. On the same day in January, Chris T. Rasmussen, who also ran in 2012, filed against three different incumbents, but then ended up withdrawing from all three races. Thomas reported talking to Rasmussen more than anyone that day, though what exactly they talked about is uncertain. Thomas admitted persuasion plays a role as candidates file. He said, "Trying to persuade people into getting out of a race against a good sitting judge is a good thing." William Maupin, a former justice of the Nevada Supreme Court, confirmed that trying to talk people out of running against a certain judge is completely legal, though he agreed with the Las Vegas Review-Journal that it disenfranchises voters. Erik Herzik, chairman of the political science department at the University of Nevada, Reno, explained that with fewer people involved in judicial politics, it can be easier for donors to influence races. He explained:

“	If you’re having a small and influential group shaping your choices, then you shape it at filing time. It’s a whole lot easier to get people out of the race and keep your people unopposed than funding a race.	”
—Erik Herzik

Judge's ruling ends uncertainty for several judicial candidates

Arkansas:

Every Thursday, Judgepedia's State Courts Staff highlights interesting events in the world of judicial elections across the nation. Make sure to use Judgepedia's Election Central the rest of the week as a hub for all your judicial election needs.

Thanks to a ruling by Pulaski County Circuit Judge Wendell Griffen, fellow circuit judge H.G. Foster will be allowed to run to keep his job. Foster's bid for re-election to the Twentieth Circuit in Faulkner County was called into question due to administrative suspensions of his law license in the past.

Foster was not the only candidate dealing with this issue, as we have documented in previous issues of Election Brief. Valerie Thompson Bailey was disqualified from running for election because of a long period during which she was not licensed in the state. There were similar lawsuits against Judge Tim Fox of the Pulaski Circuit and Twentieth Circuit candidate Angela Byrd.

Leslie Steen, the clerk of the Arkansas Supreme Court, testified that Foster's suspension, for paying his 2013 attorney's dues late, did not apply to the requirement in Amendment 80 of the Arkansas Constitution that requires circuit court candidates to be licensed for six consecutive years before they can serve on the court. An administrative suspension, Steen said, is different from a disciplinary suspension, because once the dispute is resolved, the suspension is removed and treated as if it had never happened.

Griffen declared in his ruling that a suspended license is still a license, so Foster’s status as a lawyer was never interrupted. He further asserted that such suspensions, which kick in automatically when an attorney does not pay dues, are unconstitutional because they violate due process.

Foster's opponent, Doralee Chandler, had challenged his bid in the Pulaski County court. She has not yet decided whether to file an appeal. However, during the hearing, her attorney. Lucien Gillham, argued that if an attorney is aware a suspension will result from non-payment, the attorney is voluntarily surrendering their license and the due process rule does not apply.

Griffen handled Byrd’s case a week before he issued the ruling in Foster's case. He found her qualified to run based upon the same reasoning, that her suspension was unconstitutional. This week, special appointed judge Sam Bird, formerly of the court of appeals, upheld Fox's candidacy for re-election. Bird's ruling did not go as far as Griffen's, although he also disagreed with the ruling made by John Cole, another special appointed judge who found Bailey failed to qualify for the election.

The state's nonpartisan judicial elections take place on May 20.

"Political gamesmanship" animating North Carolina judicial elections

North Carolina:

Statewide judicial elections rarely garner much attention in North Carolina. Their place at the end of the ballot signifies the level of voter interest they typically command. This year’s supreme court races, however, have begun to raise eyebrows among North Carolina politicos.

In a surprise move, Brunswick County Judge Ola M. Lewis officially entered the race for supreme court chief justice. Lewis, a Republican, will challenge fellow Republican, Mark Martin for the seat being vacated by Sarah Parker, who has reached the mandatory retirement age. Martin is currently an associate justice on the court and would otherwise have run unopposed for the chief justice position.

Lewis unexpectedly changed her plans, after announcing her intent to run for a seat held by Democrat Cheri Beasley. Citing "political gamesmanship" as a reason for her last-minute decision, Lewis drew criticism from fellow Republicans who questioned her partisanship and withdrew her invitation to the 2nd District's Republican convention.

At the Republican Party's 5th Congressional District convention, held on April 12 in North Wilkesboro, Lewis criticized the supreme court's lack of productivity, claiming that the court was one of the "lowest-ranked Supreme Courts in the nation," and implying that the current court was characterized by "mediocrity and complacency." Martin countered, "I worked nonstop in my job...I know what it takes to lead this court."

In addition to the chief justice’s seat, other contested seats on the court include the one currently held by associate justice Robin Hudson. Hudson will face attorney Jeanette Kathleen Doran and Mecklenburg County Superior Court Judge Eric Lee Levinson, both Republicans. The field of three will be narrowed to two in the upcoming primary. In all, four of the court’s seven seats are up for grabs in this election.

Candidate allowed to use volunteer position as job title on ballot

California:

B. Otis Felder scored a pre-election victory in court on March 25, 2014. Los Angeles Superior Court judge Luis A. Lavin sided with Felder in a recent ruling. Felder is competing in a three-way race for an open seat on the Los Angeles County Superior Court against opponents Dayan Mathai and Jacqueline H. Lewis.

Mathai, who currently serves as a deputy district attorney for Los Angeles County filed a writ requesting that Felder not be allowed to designate his occupation on the ballot as a "Los Angeles Prosecutor." Felder has had his own law practice, known as the Law Offices of Otis Felder, since 2008, and according to the State Bar of California's website, he specializes in admiralty and maritime law. Felder served as a volunteer attorney in the Los Angeles City Attorney's Office for approximately one year. According to Mathai, since Felder essentially worked as an extern at the city attorney's office, his volunteer work should not be allowed to be noted as his occupation on the ballot.

Under the California Secretary of State's Code of Regulations, a candidate may not use a past occupation as a ballot designation if they have a new occupation. Mathai claimed Felder completed his paperwork regarding his ballot designation on March 6. However, he had already stopped working as a volunteer at the city attorney's office on February 21.

However, according to Judge Lavin, there was no "clear and convincing evidence" that Felder was actively practicing law at all between February 21 and March 6. The judge also noted Felder continued to refer to himself as a "Deputy City Attorney" on his LinkedIn profile. Mathai had provided a printed copy of Felder's profile from the LinkedIn website, which was dated March 6.

In his opposition to Mathai's writ, Felder provided the court with a volunteer training program agreement. Lavin found the agreement supported Felder's argument that he should be allowed to designate his occupation as a prosecutor on the ballot. The agreement appointed Felder to a position as a "volunteer Deputy City attorney."

Mathai tried to argue that allowing Felder to designate himself as a "Los Angeles Prosecutor" on the ballot could cause confusion in the minds of voters. He noted they might assume Felder was hired by the city attorney's office and held a paid position with the office. However, Lavin also cited a section of the state's elections code which allows candidates to use the title they hold as a volunteer to describe their occupation on the ballot.

Meet the Kosciusko County candidates

Indiana: The race is on for two vacant judicial seats in Kosciusko County, Indiana. Six candidates will compete for two openings on the Kosciusko County Superior Court.

Seat 1 is currently held by Judge Duane G. Huffer, who is retiring. Candidates David C. Cates, Stephen P. Harris and Chad Miner are competing for the seat. James C. Jarrette currently holds seat 2 on the court and is not seeking re-election this year. Competing for this vacancy are Torrey J. Bauer, Mark Caruso and Tyler S. Haines. On seat 3, incumbent Joe V. Sutton is running unopposed for re-election to a fourth term in office.

David C. Cates has been actively involved in law in Kosciusko County for over 27 years. He currently is a partner with the law firm of Green, Cates and Grossnickle LLP, and also serves as an attorney for the Wawasee Community School Corporation. At a March 26 meet-and-greet, he indicated he considered himself to have the most experience of any of the candidates running for seat 1, based upon the cases he'd handled during his years of practicing law.

Stephen P. Harris has resided in the county for his entire life. He has over 25 years of legal experience and has a law practice with his father, Phillip J. Harris, a former prosecutor for Kosciusko County. Harris has also served as a temporary judge in various courts.

Another lifelong resident of Kosciusko County, Chad Miner is a partner at the firm Miner & Lemon LLP. At the candidate event in March, he commended the good reputation of the county's superior court and expressed his wish to assist young people involved in juvenile cases.

Seat 2 candidate Torrey J. Bauer opened Bauer Law Office P.C. in 2013. Between 1991 and 2013 he was a partner with Lavender and Bauer P.C., and he has lived in the county for 32 years. Bauer has ideas to create a more efficient process for criminal case filings.

Mark Caruso currently serves as a public defender for the Kosciusko County Superior Court, and in the past has served as a deputy prosecuting attorney for the county. In a February interview, Caruso stated the candidate who wins seat 2 on the court should be willing to work with the court's staff, prosecutors and the county bar association to help citizens feel less intimidated when they must have dealings with the court.

Last but not least, Tyler S. Haines is another lifelong resident of the county. He has practiced law since 1992 and is also a registered architect. At the March meet-and-greet, Haines claimed to understand what people in the county want from a judge. He promised that if he's elected, he would treat all parties who appear before him fairly.

It looks to be an exciting race for the Kosciusko County Superior Court. Don't forget to mark your calendars for the Indiana primary on May 6!

Candidates file in Oklahoma

Oklahoma: The filing deadline for candidates in Oklahoma was Friday, April 11. District and associate district judges serving on the district courts run in nonpartisan elections and serve five-year terms. The final day to withdraw or file a contest of candidacy was April 15. There were two judicial candidates who withdrew from their races, and two contests of candidacy were filed against judicial candidates.

The two withdrawals both relate to G. Brent Russell, an associate district judge in Stephens County. When Judge Joe H. Enos announced his plans to retire after the expiration of his current term, Russell decided to run for the open seat. This would then have left Brent Russell's current position up for grabs, and attorney Clinton Russell filed for that race. Attorneys Ken Graham and Joshua A. Creekmore also filed for the district judgeship that Brent Russell had hoped to win.

Brent Russell weighed his chances of winning with the financial burden of the campaign. A U.S. Senate race in Comanche County appeared likely to increase voter turnout in the area where Graham is well known. Russell, who still has one child attending college, said "Ken Graham has the luxury of being financially independent. The bottom line is if I lose, I’m out of a job. He doesn’t have that concern." Ultimately, Russell decided to withdraw from the district judge race, and instead run for re-election to his current post. Clinton Russell then decided he would not run for Brent Russell's seat. He will now be unopposed and automatically win re-election to another five-year term.

Veteran Florida candidates running for office again

Florida: Denise A. Dymond Lyn, Mary P. Hatcher and Bo Samargya have filed to square off for a seat on the Florida 5th Circuit Court. Candidates, though they have only recently filed, are beginning to report funds for election. Florida's Fifth Circuit is rather large, covering territory in central Florida.

Lyn is a veteran circuit court candidate. She lost to Robert W. Hodges in 2010. She is an Air Force veteran who works as an attorney in private practice. She was outspent by Hodges nearly eight to one in 2010.

Bo Samargya is a veteran candidate as well; he was defeated in a bid for public defender in 2012. Mary P. Hatcher is an attorney in private practice.

See also

• Judgepedia's Election Central
• 2014 judicial election dates