Friday, April 4, 2008
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Judicial Candidate Allowed to Run as ‘Retired Lieutenant Colonel’
By KENNETH OFGANG, Staff Writer
A candidate for Los Angeles Superior Court judge who has been a member of the military reserve may be listed as “Retired Lieutenant Colonel” on the June 3 primary ballot, a Superior Court judge ruled yesterday.
Judge James Chalfant granted a writ of mandate requiring that Robert R. Davenport be listed by that designation rather than as a “Lieutenant Colonel/Pilot,” the designation approved, at Davenport’s request, by Acting Registrar/Recorder Dean Logan.
Deputy District Attorney Jared Moses, one of two opponents of Davenport in the election, had challenged the previous designation, arguing that it was inaccurate and misleading because Davenport doesn’t fly for a living and is not currently an active service member or reservist.
The third candidate in the race, Douglas Weitzman, did not participate in the litigation. Weitzman is running as “Consumer Law Attorney” and Moses as “Criminal Prosecutor.” The three are seeking the seat from which Judge Dzintra Janavs recently retired.
‘Pilot’ Disallowed
In a tentative ruling issued prior to yesterday’s hearing, Chalfant said the candidate cannot list himself as a pilot because, although he may have flown in the military, his current license does not permit him to do so for pay, so it is not his principal profession, occupation, or vocation.
That issue was not argued at the hearing, which focused on Davenport’s military status.
The judge agreed with Moses that because Davenport is not currently in the service, any reference to his military rank must be preceded by the word “Retired.” But he rejected the prosecutor’s claim that Davenport cannot claim lieutenant colonel as his rank.
The judge cited military records showing that the Army and Air Force have determined Davenport to be eligible for retirement at that rank, although he cannot collect benefits until 2010, when he will be 60 years of age.
Moses’ attorney, Bradley Hertz, argued that he cannot be designated on the ballot as a Retired Lieutenant Colonel before he begins receiving benefits based on that rank. But Chalfant disagreed.
“That is parsing too finely a point,” the judge said. Instead, he cited state regulations that permit the use of “retired” as a designation prefix when the candidate has voluntarily left a position, is at least 55 years of age, is eligible to collect retirement benefits.
Military records and documents filed in prior litigation indicate that Davenport—who filed his nomination documents on Feb. 13—was an active naval officer from 1973 to 1977 and a reserve officer from 1977 to 1982, which encompassed the years of his law school attendance. They also indicate that he was honorably discharged from the Navy for having twice failed to earn promotion.
Davenport applied to the Army Reserve and was commissioned a judge advocate in 1990. However, he was discharged in 2002 after a panel of officers found that he failed to advise the Army of his prior discharge and to obtain the waiver required when an officer discharged from another service branch seeks an Army Reserve commission.
Prior Discharge
The discharge was accompanied by other findings of misconduct and was originally labeled as being “under other than honorable conditions,” but was upgraded to honorable by a military review board in 2004.
Documents submitted to the court yesterday by Hertz, copies of which were also provided to the MetNews, show that Davenport enlisted in the Air Reserve in 2005 as a staff sergeant, retired in 2007, and is eligible for retirement pay at 60 at the rank of lieutenant.
Hertz told the judge that Davenport resigned his commission as a lieutenant colonel in order to enlist as a staff sergeant and gain the 20 years of service credit needed for a military pension, and that he served at March Air Force base as a fuel apprentice.
The attorney argued that this supersedes his previous rank, and that if his rank is used at all, he should be designated a “Retired Staff Sergeant.” But Davenport pointed out that under the regulation, he could not use that designation because he held that rank for less than five years.
Chalfant agreed, saying nothing in the statute or the regulation says that a permissible designation for a retired person becomes impermissible if the person subsequently retires from a different position.
In another ballot designation dispute, the judge agreed that Deputy District Attorney Michael V. Jesic may be listed as “Criminal Gang Prosecutor,” even though his job duties are not limited to prosecuting gang members.
Jesic is seeking the seat now held by Judge Jack Hunt, who is retiring this summer.
A supporter of one of his opponents, Superior Court Commissioner Rocky Crabb, sued to force removal of the word “Gang,” based on the undisputed fact that Jesic left the district attorney’s Hardcore Gang Unit 18 months ago to become a calendar deputy in the courtroom of Judge Peter Espinoza, assistant supervising judge of the criminal departments in the Central District.
Chalfant had tentatively ruled that the petitioner was correct, but relented based on declaration testimony, and Jesic’s explanation during the hearing, that he retained a caseload that includes four special-circumstance murder cases, three of which involve gang violence.
Jesic explained that because the assistant supervising judge presides over a calendar but does not hear trials, oversight of the calendar involves only about two hours a day of his time. The rest of his time is devoted to his own caseload, which he said was specifically assigned to him because of his expertise in the preparation and trial of gang-related homicide prosecution.
The judge ultimately concluded that Jesic “holds a hybrid position, so that he is not misleading the voters to say he is a criminal gang prosecutor.” The judge noted that to be a valid ballot designation under the Elections Code, a candidate’s self-description need only be his or her “principal” occupation, not his or her only one.
Copyright 2008, Metropolitan News Company