Judges and Judiciary
Aug. 16, 2002
Judge Allows Candidate to Quote From Endorsement
SAN JOSE - Santa Clara County Superior Court Judge Kevin McKenney on Wednesday overturned a decision by the county's registrar of voters striking language from prosecutor Aaron Persky's candidate statement quoting two newspaper editorials saying he is the "best" choice in the judicial race.
Registrar of Voters Jesse Durazo had left intact Persky's mention of the endorsements but removed the quotes because he said they refer by implication to his opponent, Deputy District Attorney Ron Del Pozzo.
The quotes, which tout Persky as "by far the best candidate" and the "best choice" among the candidates seeking election to a vacant judicial seat, make no direct reference to Del Pozzo.
Still, Deputy County Counsel Kathryn Berry said the quotes are "an implied reference to the other candidate and not a recitation of [Persky's] own personal background."
Such references, Berry said, violate a state Elections Code statute barring judicial candidates from referring "in any way" to other judicial candidates or their qualifications.
Persky said the registrar's decision violated his freedom of speech.
Del Pozzo could not be reached for comment Wednesday.
In Persky v. Durazo, 810239, Persky argued there is no prohibition on him making an "implied comparison" between himself and Del Pozzo as long as he did not attack his opponent.
Persky also alluded to a June decision by the U.S. Supreme Court expanding the free speech rights of judicial candidates and striking down a Minnesota law barring those candidates from announcing their views on disputed legal and political issues. Minnesota v. White, 2002 DJDAR 7259.
Persky, in his writ petition, relied heavily on a footnote to a 1992 California Supreme Court decision, Clark v. Burleigh, 4 Cal.4th 474, which upheld the constitutionality of the state statute.
"If a candidate were to assert in a statutory statement that 'I am the best candidate for the office,' the implied comparison with other candidates might be deemed to indirectly 'refer' to them but could not reasonably be read to attack them," the late Justice Stanley Mosk wrote in Footnote 17. "Accordingly, the statute should not be construed to bar such a statement."
Persky said the footnote applied in his case. "You can't attack somebody, but you can make an implied comparison to say something good about yourself," he said.
In his three-page opinion, McKenney agreed, saying a candidate's right to state he is the best choice for the office is included within the definition of qualifications. He also noted that Del Pozzo, in his candidate statement, included an endorsement quote from Santa Clara County Sheriff Laurie Smith.
"This court cannot sufficiently reconcile the distinction between quotations from the newspapers and the quotation from the sheriff on behalf of another candidate so as to preclude those from the papers and allow the quotation from the sheriff," McKenney wrote.
Berry said a candidate could call himself the "best candidate" because that, arguably, is a qualification. But, she said, a quote from a newspaper endorsement is different.
"I grant you that this is a close case," Berry said. "But it doesn't feel like a personal statement of qualifications."
Berry said Durazo interpreted the statute conservatively in trying to maintain a level playing field between candidates. "The registrar," she said, "is in a tough spot."
Craiq Anderson
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