Wednesday, July 16, 2008
McKesson’s Blast at Younger Does the Judge No Harm...Helps, if Anything
By ROGER M. GRACE
Sixty-Fifth in a Series
WILLIAM B. McKESSON’s swipe at EVELLE J. YOUNGER for seeking the post of district attorney without first resigning from the Los Angeles Superior Court had no effect other than to boost Younger’s name recognition and his stature as a candidate.
McKesson was the DA when he launched his July 30, 1963 attack on Younger before the Los Angeles American Legion Luncheon Club, citing Canon 30 of the American Bar Assn.’s Canons of Judicial Ethics, as recounted here last week. The speaker mentioned, off-handedly, that the same stricture applied to Vincent Dalsimer, also a Los Angeles Superior Court judge and also apparently a contender-to-be in the 1964 election contest.
But it was Younger whom McKesson and other Democrats really wanted to stop. Though Younger had been divorced from partisan politics since his appointment to the Los Angeles Municipal Court in 1953, the former Republican county chairman was viewed as someone with the potential of going far in partisan politics, perhaps capturing the governorship. Younger—who had hosted KTLA’s “Armchair Detective” in 1948-49 and portrayed the judge on KABC-TV’s “Traffic Court” in 1957-58—had presence and a subdued form of charisma. A July 31 article in the Herald-Examiner refers to him as a “handsome jurist.”
Months earlier, it emerged that there was a prospect of Gov. Pat Brown, a Democrat, naming McKesson to the Superior Court—where he was serving when he was appointed district attorney in 1956—or to the Court of Appeal, with the 3-2 Democratic majority on the Board of Supervisors then appointing someone to replace McKesson. With the advantage of incumbency, such an appointee might well have been able to turn back Younger’s challenge.
McKesson, at his press conference on July 24, announced his decision not to seek reelection and that he was endorsing his chief deputy, Manley Bowler. With respect to the rumors of a possible judicial appointment, he acknowledged:
“I talked to the county supervisors about this, and they urged me to fill out my term, that they did not want to make an appointment with an election coming up....”
What McKesson managed to do by virtue of his July 30 talk was not only to throw the spotlight on Younger, but to do so at a time when Younger was acting in the service of his country…a fact that became known to the public only because McKesson’s attack caused reporters, in search of a comment, to track down where Younger was. Typical among the reports is an article in the Aug. 1 edition of the Van Nuys News which says:
“Younger issued his statement from Bolling Field in Washington, D.C. where he is presently serving two weeks active duty as an Air Force colonel.”
The article quotes Younger as correcting McKesson on a significant point:
“The District Attorney said that I have solicited contributions for this campaign and I wish to state that I have neither solicited nor received a single dollar for this race.”
“I have been approached by many people to seek the District Attorney’s office and I am seriously considering doing so but as of yet I have made no declaration of candidacy.”
This image of Younger emerged: patriotic, cool-headed, maligned.
The DA also unwittingly gave a boost to Dalsimer. News coverage of that judge’s utterances was in all probability more extensive than if the DA had not caused the public’s eye to be cast upon him. July 31 charges by Dalsimer—charges which I suspect would have commanded scant attention four years earlier if made by McKesson’s lackluster challenger—were on the front page of the Times’ second section (local news) on Aug. 1. This statement is quoted:
“Since deciding to spend the remaining year and a half of his public position of trust as his assistant’s campaign manager, both he [McKesson] and Mr. Bowler have used the facilities and personnel of the District Attorney’s Office to prepare and reproduce campaign literature. I refer to those documents distributed by McKesson Tuesday [July 30].
“I have further been informed that McKesson and Bowler have violated the Los Angeles County Charter by causing deputy district attorneys to distribute campaign literature. The charter expressly prohibits county employees from being involved in county politics.
“I request Atty. Gen. [Stanley] Mosk to make an investigation into this matter immediately.”
In his July 30 address, McKesson made note that he had advised the Los Angeles Superior Court’s presiding judge, McIntyre Faries, that “our deputies are to be instructed to refuse to try any more cases before that judge [Younger] because we do not believe that the people of the state of California, whom we represent in every criminal proceeding, can possibly get a fair and impartial trial before a judge who so blatantly violates the canons of his own profession.”
The logical flaw is obvious. The ABA canon (as well as a mirroring provision of the Conference of California Judges) called for resignation of a judge who sought nonjudicial office. Even if these canons were binding on the judge, and the judge skirted the ethical duty, how could this be said to evidence bias against the prosecution?
McKesson’s threat as to the blanket filing of affidavits of prejudice against Younger (and Dalsimer was apparently included) hinted at an intent to suborn perjury on the part of his deputies by requiring that they swear to bias which they had no factual basis to believe to exist.
On July 31, two matters were set to be heard in Dalsimer’s court. A deputy district attorney announced in the morning that he had been told to request that they be shifted to another courtroom. As the Times’ story the next morning tells it:
“Dalsimer put the cases over until the afternoon, but before they were called again McKesson announced his office would not challenge Dalsimer, pending a decision by Presiding Superior Court Judge McIntyre Faries whether Dalsimer and Younger should continue to sit in criminal cases.”
On Aug. 1, Faries declined to transfer the judges. At that point he had not talked with Younger because of his absence from the state, but had conferred with Dalsimer.
“My information is that he is not doing the things which I ordinarily associate with a candidacy, to wit: forming committees, issuing publicity, raising money, arranging speaking dates, etc.,” Faries said in a letter to the DA.
The PJ said he respected the ABA canons, but made note they were merely “a guide.”
His job was running a court. “I will not concern myself with ethics of candidates or their sponsors,” he declared.
Faries told the DA that his “unsolicited suggestion is that you, Judge Dalsimer and Judge Younger each choose a recognized outstanding member of the bar, one in whom all have confidence—and there are many of these—and that they meet and consider all the problems.”
McKesson immediately dismissed the notion that “an arbitration board,” as he termed it, would be useful.
On Aug. 2, McKesson announced that he had referred the matter to the American Bar Assn., the Conference of California Judges, and the Los Angeles County Bar Assn. (The Commission on Judicial Performance was not yet in existence.)
McKesson and Faries participated in a “harmony meeting” on Aug. 5 in the office of Supervisor Kenneth Hahn, with Hahn acting as referee. While total accord was not reached, the threatened blanket affidavit policy was not effectuated.
McKesson’s effort to embarrass Younger by accusing him (and by inference, Dalsimer) of “flagrantly unethical conduct” backfired.
The public just didn’t see anything sinister in a judge not hanging up his robe before seeking a nonjudicial post. The press didn’t either...at least at a point where candidacy was merely being contemplated. Here are some reactions:
●Herald-Examiner, Aug. 7:
Mr. District Attorney went too far in impugning the judicial integrity of these two respected judges when he made his charges. He accused them of running for office when, in fact, neither had finally decided to run for district attorney.
In addition, Mr. McKesson virtually already has become a campaign manager for his own chief deputy district attorney so the motivation for his caustic attack on Judges Young [sic] and Dalsimer is clear, indeed.
It may be that sometime in the future either Judge Younger or Judge Dalsimer, or both, may announce candidacy for district attorney. They have not yet done so, and thus Dist. Atty. McKesson’s charges appear to be woven out of thin political cloth.
In the meantime, Mr. McKesson is faced by the accusation of Judge Dalsimer that he is attempting to “maintain his dying grasp” on the district attorney’s office “through the device of passing his mantle on to his own lieutenant.” A dynasty?
Stick to your last, Mr. D. A.
●Los Angeles Times, Aug. 8:
There’s only one way to view Dist. Atty. William B. McKesson’s recent verbal assaults against two respected judges who may seek the office he now holds—as a shabby, pointless vendetta.
The Times regrets that McKesson has climaxed a distinguished career with this ill-timed political sortie, and is using his official prestige in an effort to pre-empt the field for his own deputy more than a year before the 1964 elections.
The Times believes that the ABA and state judicial canons should not preclude a judge from making proper preliminary inquiries concerning his candidacy for other office. Moreover, until he files formally next February, no candidate can truly be said to have ‘decided’ to run.
The California Constitution specifically lets Superior and Municipal judges seek political office without resigning. This is as it should be. These men and women comprise a splendid reservoir of talent that so often goes beyond judicial service, as California’s history amply proves.
Now that McKesson has made his dubious point we urge him to cease and desist—as the legal fraternity says—from this unseemly vendetta, and allow the public to exercise its franchise at the proper time and in the proper place.
●Pasadena Star-News, Pasadena Independent, Aug. 8:
District Attorney William B. McKesson, who has a rather distinguished record, appears unduly exercised over whom the voters of Los Angeles County will elect to succeed him next year.
Not since John Dockweiler beat Buron Fitts in 1940 has a new district attorney been elected by voters. Since then vacancies have been filled by appointment, the appointees being elected at the end of the unexpired terms to which they had been named.
It would appear appropriate that the voters in 1964 have the opportunity to select their own district attorney from among candidates who actually file for the office in February. McKesson might well embrace this viewpoint, rather than use the power of his office in an effort to hand-pick his successor. Doing so would jibe better with his admirable handling of himself in the past than do his current attacks on men who have yet to file as candidates.
●Long Beach Independent Press-Telegram, Aug. 11:
IN A LONG, FINE CAREER of public service a man is entitled to a few mistakes. District Attorney William McKesson is using up some of his entitlement in his attack on two Superior Court judges who may be candidates to succeed him when he leaves office next year.
Having endorsed his own chief deputy, Manley J. Bowler, as a successor, District Attorney McKesson seems to feel that it is some sort of crime for anybody else to consider running.
Without any prejudice against Mr. Bowler, we see nothing wrong with the consideration given by Judges Evelle Younger and Vincent Dalsimer to the possibility of becoming candidates.
If it violates a code of ethics, that code is unrealistic and invites violation. It is no more reprehensible of Judge Younger to consider being a candidate than it is of Mr. McKesson to try to handpick the successor to his office.
The responses by Younger and Dalsimer to McKesson’s charge that they were breaching canons stressed that they were not yet candidates. Their rejoinder was rendered ineffective, of course, once Younger and Dalsimer did file their nominating papers, and did not quit their jobs (though Dalsimer went on an unpaid leave of absence).
The Los Angeles County Bar Assn. publicly rebuked the jurists, both of whom had retorts. But that’s a tale already told here.
My column of August 9, 2005—“1964: LACBA Censures Two Judges for Seeking DA’s Post Without Resigning”—is incorporated by reference.
The ABA canon provided that a judge “should not become an active candidate either at a party primary or at a general election for any office other than a judicial office,” but if the judge did “decide to become a candidate for any office not judicial, he should resign” from the judgeship.
A salient point made by Dalsimer on Aug. 6 in a letter to the County Bar’s president, and repeated by Younger in response to the censure was this: Art. VI, §18 of the state Constitution expressly allowed a sitting judge to run for a nonjudicial office. It provided, as it had since 1930, that “a judge of the superior court or of a municipal court shall be eligible to election or appointment to a public office during the time for which he may be elected.”
How could a canon render unethical that which the state Constitution expressly authorized?
Sec. 18 in 1966 became §17. It provides: “A judge of a trial court of record may...become eligible for election to other public office by taking a leave of absence without pay prior to filing a declaration of candidacy.”
Copyright 2008, Metropolitan News Company