Judge says suspended attorney can remain on ballot for DA

SANTA ANA -- In a case a judge said had little precedent, a candidate for Orange County district attorney whose license is suspended by the State Bar has been permitted to stay on the election ballot, but she can't describe herself as an attorney.

An order from Orange County Superior Court Judge Craig L. Griffin late Friday said two state election codes appear "somewhat in conflict" regarding Lenore Sheridan-Albert's ballot eligibility, so he followed case law that said ambiguities are to be resolved in favor of eligibility for office.

"The court recognizes that the right to be considered for and to hold public office whether by election or appointment is a fundamental constitutional right," according to the 10-page order from Griffin.

Still, the judge said Sheridan-Albert's suspension clearly disqualified her from describing herself as an attorney on her ballot designation. Sheridan-Albert, a Huntington Beach sole practitioner, stated she was a civil rights attorney.

Griffin cited Elections Code 13107, which prohibits designations that mislead voters. His order partly granted and partly denied a petition for writ mandate filed on behalf of Anaheim resident Mark Daniels by Brea sole practitioner Gregory A. Diamond, who ran for district attorney in 2014.

Attorney Lee K. Fink argued in court last Thursday in Diamond's place. Fink is deputy counsel for the Orange County Employees Retirement System but was not serving in that role for this case.

Fink appealed the order Monday. He asked the 4th District Court of Appeal to prioritize review because ballots are scheduled to be printed next Friday. If a candidate gets more than 50 percent of the vote in the June 5 primary, he or she will be elected and no election will take place in November.

Fink said allowing an ineligible candidate to be on the ballot "could really disenfranchise voters" and affect the placement of incumbent Tony J. Rackauckas and Sheridan-Albert's fellow challengers, Todd A. Spitzer and Brett M. Murdock, in the first four-way race for district attorney that Orange County has seen in at least 20 years.

"You couldn't fix it after the election," Fink said.

Sheridan-Albert said Monday she's deciding how to proceed.

"This is just way blown out of proportion," Sheridan-Albert said.

Representing herself in court last week, Sheridan-Albert argued that discipline "is kind of the nature of being an attorney, unfortunately" and said attorneys could have their law licenses suspended at any time. According to the State Bar website, Sheridan-Albert has been suspended since Feb. 14, which was the day the state Supreme Court denied her petition for rehearing in a disciplinary case that included a three-day trial in July 2016 for charges related to her failure to cooperate with an investigation and pay sanctions.

On March 9, she signed a candidate declaration that said she meets the qualifications for district attorney, which Fink argued Thursday isn't true because of her suspension. However, while Elections Code 8040 provides a template for candidate declarations that states they currently "meet the statutory and constitutional qualifications for this office," Election Code 8550 states that candidate declarations must state that "if elected the candidate will qualify for the office." Sheridan-Albert's suspension is a minimum of 30 days and is to continue until she pays sanctions of $5,738 with interest, as well as more than $18,000 in costs to the bar.

Lifting the suspension "is not out of her hands," Griffin ruled. "Ms. Albert admittedly has not complied with the condition for the payment of the sanctions, but the amount required is not insurmountable," according to the order. Daniels v. Kelley, 18-00980421 (Orange Super. Ct., filed March 19, 2018).

The judge cited case law that said a person's right to seek office "should not be declared prohibited or curtailed except by plain provisions of law. Ambiguities are to be resolved in favor of eligibility to office." Carter v. Commission on Qualifications of Judicial Appointments, 14 Cal.2d 179, 182 (Cal. 1939).

He also referred to "scant case law regarding qualification-based challenges to candidates" that he found instructive. One case is Samuels v. Hite, 35 Cal. 2d 115 (Cal. 1950). Another is Walter v. Adams, 110 Cal.App.2d 484 (Cal. App. 2nd Dist. April 22, 1952).

Together, they establish that if an unqualified candidate has the ability to qualify, "any challenge to eligibility before the election is premature."

Fink argued Thursday that Sheridan-Albert can't qualify in time because of the amount of debt, and he said she could face further discipline because she is suspended from practicing law "and she has been doing that frequently and publicly." "So what happens next to her, I don't know. But certainly neither does Ms. Albert," Fink said. Sheridan-Albert declined to comment on that allegation Monday.

Fink said voters will be harmed by Sheridan-Albert's ballot presence and noted she's sought other elected offices and received many votes.

"We will be disenfranchising those hundreds of thousands of people who are voting for somebody who cannot be eligible and will automatically have to be removed as a result," Fink said.

Griffin addressed Sheridan-Albert's alleged unlawful practice of law, writing in his order, "The evidence clearly indicates she continued to practice law after her actual suspension became effective."

"But whether the State Bar will refuse to reinstate her ability to practice law based on such violation of the State Bar Act is at this point speculative," Griffin wrote. "Indeed, the State Bar may find persuasive Ms. Albert's defense that at the time she made the court filings, the State Bar website listed her status as active." However, the judge said that defense didn't mean her license wasn't suspended as of Feb. 14.

"That the State Bar was tardy in updating its website status for Ms. Albert does not alter her suspension date," according to the order.

A State Bar spokeswoman confirmed to the Daily Journal Monday that Sheridan-Albert is suspended from practicing law, but she declined to say whether she faces a new investigation.

Sheridan-Albert said in court that she's paying her bar fines as part of her Chapter 13 bankruptcy reorganization.