Tuesday, December 24, 2019

Page 8

JUDICIAL ELECTIONS: Los Angeles Superior Court Office No. 80

Two Deputy Districts Are in Race With State Administrative Law Judge

By ROGER M. GRACE, Editor

There were initially 12 open seats in the March 3 primary. In three of the races, a female deputy district attorney declared her candidacy, and no one else entered the race. In the contests for the remaining nine seats, there are eight with one deputy district attorney running. In the competition for Office No. 80, two DDAs—David Berger, 62, and Nick C. Rini, 64—are competing. Rini says he waited until the last day to file a declaration of intent to run for the office and that, when he submitted his papers, the records did not yet reflect that Berger had filed a declaration for the seat that same day.

Also in the race is Klint James McKay, 65, an administrative law judge for the California Department of Social Services.

Berger’s law degrees are from the University of London and Loyola; Rini received his from the University of San Diego; and McKay’s was awarded by the Wayne State University in Detroit.

With gender bias on the part of the electorate swinging in favor of female candidates, Berger lost a 2016 contest for the Los Angeles Superior Court to then-Deputy Attorney General Kim L. Nguyen, and was defeated last year by then-Los Angeles Superior Court Commissioner Danielle R.A. Gibbons. This year, there is no female in the contest and his opponents, so far, have staged anemic campaigns.

McKay last year entered a race against Los Angeles Superior Court Judge Kristin Escalante but quickly backed out after incurring negative reaction to his challenging an incumbent. Rini has not previously run for office.

Candidates, including Berger and McKay, who were interviewed last year, were not reinterviewed this year, but each was asked to supply a statement on subsequent activities that have increased his or her fitness for judicial service.

DAVID BERGER

London-Born Deputy DA Makes Third Bid for Superior Court Judgeship

BERGER

Nothing much about Los Angeles Deputy District Attorney David Berger has changed since his two past campaigns. The London-born prosecutor—who has resided in Los Angeles since 1989—still has a British accent, still speaks in measured tones, and still wants to be a judge.

Here are his words as to what he’s been up to of late:

“As to what I have done in the past year that makes me better qualified than in 2018, I would say that my July 2019 transfer to the Van Nuys Courthouse has exposed me to different and more complex cases. I am assigned to the Victim Impact Program (‘VIP’) which provides vertical prosecution in cases involving particularly vulnerable victims such as children who have been subject to sexual or physical abuse, elders who have been victims of financial or physical abuse, as well as adult victims of sexual abuse, stalking and domestic violence. Although my prior assignment at the Airport Courthouse was also in VIP, the child abuse cases were not handled by VIP, but rather by a different division called ‘Stuart House.’ Thus my new assignment has exposed me to more challenging legal issues.”

He continues:

“Additionally, the transfer has given me the opportunity to appear before a new set of bench officers the Van Nuys Courthouse. I had been at the Airport Courthouse for almost six years, and was long overdue for a transfer. It is always a challenge to get used to a different courthouse and to different bench officers, but as they say, travel broadens the mind, and I believe getting the respect and approval of another set of bench officers has increased the amount of experience and institutional knowledge that I will bring to the table. It is also quite rewarding to note that in the brief time that I have been at Van Nuys, almost all the bench officers that I have appeared before have endorsed my candidacy (there are a couple of bench officers with whom I have particularly sensitive cases, and an endorsement could be seen as inappropriate until these cases are resolved).”

‘Exceeded Expectations’

His overall office rating in the past three years has been “Exceeded Expectations (Very Good).” The latest report, for the period ending Sept. 30 (deputies are on varying cycles) says:

“Mr. Berger is truly an asset to the Airport VIP Unit. His experience and judgment is valuable in both his ability to handle complex cases and to serve as a resource for his fellow deputies. Mr. Berger carried a caseload of approximately 20 specially assigned VIP cases as well as numerous probation violation matters. Mr. Berger is a conscientious and hardworking attorney who meticulously prepares his cases. He understands complicated sex crimes charging and often offers creative and ingenious ways to file charges and settle cases in a manner that achieves justice. Moreover, he is constantly looking to gain knowledge and experience through trainings and staying current on recent changes in the law.

“During this rating period, Mr. Berger tried an extremely difficult domestic violence case….Mr. Berger is a dedicated deputy who always strives to achieve justice in all of his cases.”

The 2017-18 report notes:

“Mr. Berger has developed his own. highly effective, ‘paperless’ system for keeping track of cases assigned to him. All phases of prosecution, from initial presentation, follow-up investigation, case filing, case-settlement or trial, exist both in the traditional DA file, as well as on his iPad. In this way he is able to handle the heavy caseload of his assignment effectively and efficiently, thereby ensuring that he can make all his court appearances, respond to discovery requests, and request appropriate follow-up investigation in a timely manner. In addition to handling assigned cases, Mr. Berger has taken the time to develop solid working relationships with law enforcement agencies so that they have a better idea of what is expected of them in order to deliver cases that can be evaluated and either appropriately filed, referred or declined. Detectives working with Mr. Berger know that they can contact him outside working hours so that their in-custody filings are handled thoroughly, accurately, and without delay.”

Two Decades

Berger was admitted to the State Bar of California in December 1997. At the time, he was working as a salaried law clerk for the District Attorney’s Office.

In 1998, he was hired as a deputy district attorney. He has been at that post ever since, except for a detour to the Los Angeles City Attorney’s Office where he served for nine months as a special assistant to Carmen Trutanich.

That stint began on July 1, 2009, the day Trutanich was sworn in as city attorney. (Berger, who ran unsuccessfully for city attorney in the primary, backed Trutanich in a run-off with then-City Councilman Jack Weiss.) Berger’s service ended abruptly. He will only say that Trutanich ordered him to do something that was unethical and, rather then complying, resigned.

Berger’s political commentary about Trutanich on a much-viewed blog fueled public distrust of the office-holder, who lost in a bid for district attorney then failed to gain reelection as city attorney.

Berger has the endorsements of former District Attorneys Steve Cooley and Robert H. Philibosian.

KLINT JAMES MCKAY

ALJ Demonstrates Unfamiliarity With California Law Relating to Judicial Elections

MCKAY

California Administrative Law Judge Klint James McKay of the Department of Social Services, who sits in Sacramento, is seeking a Los Angeles Superior Court judgeship for the second time. Here is the background on his first race:

●Dec. 14, 2017: McKay takes out six ‘in lieu” petitions for Los Angeles Superior Court seats. Each signature on a petition can be used in lieu of cash to cover a portion of the filing fee to run for an office. Three signatures in that election, as in the current one, takes off $1.

The six seats McKay eyes are not “open seats”—that is, ones held by incumbents who are not running to succeed themselves. They are vacancies; the incumbents had already left office. Then-Gov. Jerry Brown has the prerogative of filling them, and it is generally assumed he would do so.

●Dec. 22, 2017: Brown fills the six vacancies. (He traditionally made a batch of judicial appointments at Christmastime.)

One of the six he taps is Kristen Escalante, then an attorney at Manatt, Phelps & Phillips, LLP.

●Feb. 1, 2018: Despite the act of the governor in filling the six spots, McKay files in the Office of Los Angeles County Registrar-Recorder the six petitions on which are affixed signatures he had culled. By applying those signature to any filing fee, should he challenge any one of the six new judges, he would save $6.60.

●Feb. 7, 2018: It is the last day for an incumbent or a challenger to an incumbent to file a declaration of intent to run for office. McKay files a declaration to seek the office occupied by Escalante. He later explains that he thought it would not be known until the next day whether there would be any open seats, and he ran against Escalante because he didn’t want to risk the possibility that no incumbents who were up for election would decide not to run. In fact, it was widely known that there were 10 open seats; candidates had filed declarations for each of those seats.

●Feb. 8-12, 2018: There is a statutory five-day extension to file a declaration for an open seat. Anyone who qualifies to run for a Superior Court judgeship, other than the incumbent, may jump into the race. Thus, McKay could run for one of the 10 open seats—with there being no doubt, at the end of the day on Feb. 7, that those open seats exist. He later says he did not learn until Feb. 13 of the availability of those open seats.

●Feb. 14, 2018: McKay meets with the METNEWS. He disclaims a position that he’s better qualified for a judgeship than Escalante, saying:

“I think that we’d both be equally qualified, so far as I can tell. I don’t know her at all.

“Right now, as I sit here, I have no indication that she’s not a good judge.”

While acknowledging the lack of a campaign consultant, or endorsements (though he wanted to count the signatures as endorsements), a campaign website, or any commitment of personal funds to the campaign, he rejects the suggestion that he could not possibly win.

●Feb. 22, 2018: McKay announces:

“I withdraw my challenge to Superior Court Judge Kristin Escalante, effective immediately, and will not file a Declaration of Candidacy.”

He had already filed a declaration. He meant that he would not file nominating papers.

McKay explains that he got into the race “without having experience” and subsequently, “having consulted with people who have experiences in these races, it became apparent to me that I was causing more grief than I expected.”

And that ends McKay’s 2018 election bid.

Current Candidacy

McKay is again running for the Los Angeles Superior Court.

He filed his declaration of intent to seek Office No. 80 on Nov. 7; the next step was to take out and file nominating papers for that office. Yet, McKay was initially allowed by the Office of Registrar-Recorder—impermissibly—to take out nominating papers for a different office, with the error soon being corrected.

In filing his nominating papers for Office No. 80, McKay chose the ballot designation of “Administrative Law Judge.” Rival candidate David Berger on Dec. 9 advised the Office of Registrar-Recorder:

“Mr. McKay has used ‘Administrative Law Judge’ as his ballot designation. This is unlawful and potentially misleading as it does not comply with California Elections Code 13107(b)(3)(D) ) which states: ‘If the candidate performs quasi-judicial functions for a governmental agency, the full name of the agency shall be included.’ Mr. McKay’s chosen ballot title fails to state the full name of the agency that he works for. Attached please find a partial printout from Transparent California which lists salary and job title information for all California public employees. This provides the correct agency name for Mr. McKay.

“Accordingly, Mr. McKay’s Ballot Designation should state ‘Administrative Law Judge, Department of Social Services.’ ”

The Office of Registrar-Recorder on Dec. 11 agreed, altering the ballot designation.

Rini’s Response

The third candidate in the race, Los Angeles Deputy District Attorney Nick C. Reni, notes that the designation that now includes McKay’s agency is more cumbersome and less effective, but says he did not know how Berger effected the change, asking:

“How did he do that?”

He says he was not aware that McKay’s chosen designation was improper, but acknowledges he has not read the governing statute, Election Code §13107.

McKay was admitted to the State Bar of California in 1985, became a deputy attorney general in 2006. and in 2014, was hired as an administrative law judge in the Affordable Care Act Bureau of the California Department of Social Services.

With respect to why he is more qualified this year than last, McKay says:

“The only change is that I now hear most of the types of cases within the Department of Social Services.”

His wife is Adrienne Helen McKay, an attorney with the law firm of Freeman & Smiley LLP in Century City.

NICK C. RINI

Prosecutor Says He Wants to Deliver His ‘Message’ to the Electorate

RINI

In a time when most voters make choices in judicial contests—if they get that far down in the ballot—based on the sound of names, the attractiveness of ballot designations or whether the candidate is listed on a slate mailer, veteran Los Angeles Deputy District Attorney Nick C. Rini is embarked on an ambitious mission. He wants to reach the electorate with a “message”—and that message is that he’s the “reasonable choice” for Office No. 80.

His plan is to speak to organizations—so far, he hasn’t addressed any, he acknowledges—and utilize social media. Rini does not have a campaign consultant, but does, he notes, have a social media advisor. He does not yet have a campaign website.

“How am I going to win?” he says, repeating the question asked of him. “Get my name out there by having the people that know my reputation—most of the lawyers, the judges, defense attorneys, prosecutors—when they’re asked, and that’s generally who’s asked about judicial elections, I think, and hopefully they will put the name out there and tell them that I am the reasonable choice based on my experience and my fairness.”

His campaign blueprint, he summarizes, is “word of mouth, social media, speaking to groups.”

Low-Budget Campaign

The candidate tells of a willingness to put “about $20,000” of his own money into his campaign coffers. That, he says, should be enough.

(He cannot yet take in contributions from others; a finance committee has not been formed.)

The candidate notes that in Los Angeles County judicial races, “some people spend $600,000 and lose” while others have meager expenditures of “$20- to $25-thousand and win.”

He comments that he hopes a situation does not exist where an aspirant for judicial office “can buy a judgeship” through high spending in an election campaign.

Anticipates Run-Off

Rini says he anticipates being in a run-off with James McKay who, he points out, has, in his ballot designation, the words “Administrative Law Judge.” The word “Judge,” he remarks, is apt to attract votes.

He says of the other deputy district attorney in the race, David Berger:

“I don’t know anything negative about him per se, but since I’m the reasonable choice, I would put my record up against his any day. I have more experience than he does. I’ve done, I’m sure, more trials.”

Rini relates that he’s handled 97 trials, including six murder trials, during his 35 years in the office.

Performance Evaluations

He received the rating of “Exceeded Expectations (Very Good)” in his past three annual performance evaluations. The latest report, covering Dec. 1, 2017 to Nov. 30, 2018, contains this assessment:

“Mr. Rini manages his calendar in a highly efficient and effective manner, and obtains outstanding case dispositions. Cases that go to that from his court are always very thoroughly prepared. All available evidence from all available sources is always obtained. All witnesses have been bested and lined up. The trial deputy is able to focus on becoming familiar with the case and developing trial strategy, rather than further investigation and searching for witnesses.

“Mr. Rini requires no supervision, but enjoys consulting with supervisors on matters that call for the approval or input of a supervisor. In such cases, Mr. Rini proposes an approach which demonstrates a sound analysis of the case, taking into consideration all legal and factual issues, as well as the interests of justice.”

‘Unreasonable’ Judge

The report of performance evaluation covering the period from Dec. 1, 2016 to Nov. 30, 2017 contained comments on the interplay between him and the judge to whose courtroom he was assigned, until Oct. 17 of that period, Katherine Mader. It says:

“His calendar judge is notoriously lenient and prone to give unreasonable credence to the defense’s offer of proof. As a consequence, in each case before her, Mr. Rini must double his research and preparation in order to persuade the judge to reject the unreasonable. It is a tireless effort, and Mr. Rini deserves high praise for his unceasing efforts in this regard. Mr. Rini prepares his caseload without compromise nor procrastination.”

The report for the previous one-year period says:

“Although he is frequently at odds with his calendar judge, who is habitually critical of the District Attorney’s settlement and sentencing policies and practices, Mr. Rini is always professional and respectful when advocating the People’s position. Most impressively, although the management of cases In his assigned court is a dally grind, Mr. Rini remains uncompromising in his advocacy.”

It also sets forth:

“This rater has been very impressed with Mr. Rini’s work ethic, as demonstrated time and again by his willingness to conduct original research, reach out to subject matter experts and to draft points and authorities that are persuasive and leave no room far legitimate opposition. Mr. Rini works very hard to persuade an otherwise reluctant calendar judge to consider viewpoints that are counter to her liberal instincts. As a consequence, he is effective at securing reasonable and appropriate rulings and punishment.”

Admirable Judges

Rini mentions judges he would, if elected, emulate. He singles out for particular praise Los Angeles Superior Court Judge Judith Meyer, saying:

“I really admire her for the way she approaches her job. She listens well and I think that is one of the primary qualities of a good judge—to listen to both sides, to see what they’re saying, and to keep an open mind. She would always keep an open mind.”

He notes that she will reconsider a ruling, where appropriate, declaring that she is “not stubborn or bullheaded about changing her position.”

Rini was endorsed yesterday by Los Angeles Superior Court Judge Daniel Buckley, a former presiding judge.