Tuesday, February 20, 2018
JUDICIAL ELECTIONS: Los Angeles Superior Court Office No. 94
Administrative Law Judge Challenges Newly Appointed Judge
There are two Los Angeles Superior Court judges facing election challenges this year: a veteran jurist, Malcolm Mackey, who won election to the court in 1988, after 10 years on the Los Angeles Municipal Court, and a neophyte, Kristin S. Escalante, who was appointed Dec. 22.
Both have engaged the services of political consultant David Gould and each has pledged to wage an aggressive campaign.
Little is known about Mackey’s challenger, Woodland Hills attorney Anthony Brandon Lewis. Escalante’s challenger is a state administrative law judge, Klint James McKay, who has no campaign consultant and so far, no signs of a campaign organization.
The contest between Escalante and McKay is spotlighted below.
KLINT JAMES MCKAY
Aspirant for Judicial Office Mistakenly Perceived Prospect of No Open Seats
Why is state Administrative Law Judge Klint James McKay challenging Los Angeles Superior Court Judge Kristen Escalante in the June 5 primary election? It would appear to be based on a gaffe, on his misunderstanding of judicial elections.
McKay says he thought that it would not be known until Feb. 8 whether there would be any open seats on the court and his alternatives, if he wanted to run this year, were to wait until then, and risk the prospect of there being no openings, or file a declaration of intent by the Feb. 7 deadline to challenge an incumbent. In weighing his options, he only considered, from his account, challenging one of the six judges appointed by Gov. Edmund Brown Jr. in December.
In point of fact, there are 10 open seats this year, all of which were identified by Feb. 7—and by the end of the day on that date, there was at least one candidate who had filed a declaration of intent for each of those offices, with there being 25 candidates for open seats, in all.
Feb. 7 was the last day for filing declarations of intent, except that there is a five-day extension period in each election year to sign up for an office held by a judge who was up for election that year but opted not to run. This year, six additional persons entered races during the extension period.
McKay, on Dec. 14, took out six petitions on which to gather signatures that could be used in lieu of cash in connection with filing fees. There were then six vacant Los Angeles Superior Court seats that had been held by judges who were up for election this year.
Gov. Jerry Brown filled those seats on Dec. 22, in his annual Christmastime flurry of appointments. One of those judgeships was bestowed on Escalante.
McKay nonetheless filed signatures on Feb. 1 for each of the six offices, and on Feb. 7 filed a declaration of intent to run for Escalante’s Office No. 94, paying the portion of the $1,890.41 filing fee not covered by the signatures. (The filing fee is based on one percent of the annual salary for the office.)
Although it is possible to run for only one office, multiple declarations of intent may be filed. The decision as to which office to seek need not be finally made until nomination papers are filed.
The period for doing so ends this year on March 9.
Even after filing a declaration of an intent to challenge Escalante, McKay could still have become a candidate for any of the 10 open seats, up until the extension period closed Feb. 12. However, he says he did not realize until Feb. 13 that open seats existed.
There are 165 judges who are up for election this year, 155 of whom decided to seek to succeed themselves, so that McKay could have challenged any of the 154 judges other than Escalante. The reason he felt that he was confined to running for the offices of one of the six recent appointees, he explains, is:
“I collected signatures for them—I had collected 20 signatures.”
It would have required 6,062 signatures to cover the entire filing fee for any seat. By submitting, for Office No. 94, 20 signatures—valued at 33 cents each—he saved $6.60.
Here’s McKay’s recitation as to his thinking:
“There were six open spots when we started the process. Then, ultimately, what happened was, we got down to the wire. Governor Brown appointed people to every spot, didn’t leave any open.
“Well, then I was presented with a choice: either waiting to see if any sitting judges didn’t re-up—we wouldn’t know that until Feb. 8—or electing to run against one of the ones he appointed to one of the six formerly open spots. If none of the judges retired or otherwise didn’t re-up, then I would be locked out for the election cycle.
“So, I had to make a choice whether to run for one of the formerly open spots or take my chances.”
He insists that “before that five-day period, there’s no way to tell” which judges will not be running. The candidate relates that he was told at the Registrar-Recorder’s Office that judges “were not committed to not running until the 8th.”
No Campaign Organization
McKay acknowledges that he has no political consultant, no “McKay for Judge” website, no campaign materials, and has no idea as to how much money he would need to raise to win. He declines to state how much of his own funds he is willing to devote to the campaign.
He says he has received no expert political advice from anyone, but mentions that Los Angeles Superior Court Judge Robert Appplegate has given him general guidance on procedures in judicial elections.
“I gave him general information as to procedures in a judicial election to an open seat. I was unaware of any challenge to Judge Escalante.”
With respect to the contest between McKay and Escalante, he says:
“I take no position.”
As to whether he has any endorsements, McKay points only to the fact that he collected 20 signatures on his “in lieu” petition.
The candidate does not claim to be capable of doing a better job 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.”
Sought Judicial Appointment
McKay acknowledges that he applied for appointment to the bench in October of 2013, was scrutinized by the State Bar Commission of Judicial Nominees Evaluation (“JNE”) and, so far as he knows, his application is “still on the governor’s desk.”
When JNE receives the name of a potential appointee, it sends out questionnaires to persons apt to know the candidate. It is required to advise the candidate, in advance of an interview with a subcommittee, of any adverse comments—termed “negatives”—that it has received, doing so in general terms, so as to safeguard the identity of the persons providing the information.
Escalante declares that she received no “negatives.” McKay admits that he was apprised of three areas of concern, but professes an inability to pinpoint them, explaining:
“I’m trying to remember. It’s been a year—it’s been more than a year.”
McKay, 63, received his law degree from Wayne State University Law School in Michigan. He was admitted to the State Bar of California in 1985.
He was in private practice; 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.
His wife of 19 years, Adrienne Helen McKay, is an attorney with the law firm of Freeman Freeman & Smiley LLP. He has a stepson and a daughter.
His hobbies have been playing the guitar—which he’s done for 40 years—and brewing beer, primarily dark brews, an art on which he has instructed classes.
McKay appeared, as a lawyer, in a 2006 movie, “Living the Dream.”
“I would like to be a Superior Court judge,” he declares, maintaining:
“I’m fair and I think I would be an excellent judge.”
—Roger M. Grace
KRISTIN S. ESCALANTE
Contends With Election Challenge That Comes Just Days After She Assumes Judicial Duties
It’s generally agreed that a candidate who seeks to unseat an incumbent Los Angeles Superior Court judge should have a strong cause to do so.
With just a few days on the bench after being appointed to replace retired Superior Court Judge Suzanne G. Bruguera, Kristin Escalante, 54, says she doesn’t believe she’s fumbled to the point of warranting a challenge.
“I certainly don’t believe the challenge is motivated by anything specific to me,” she opines. “I don’t know of course.”
Escalante, a Democrat, was understandably surprised to learn that she will be fending off a challenge for her new Downey courthouse office from Klint James McKay, an administrative law judge for the California Department of Social Services who says, “I’ve never voted for a Republican.”
“I was very surprised to be challenged,” she says. “I know nothing about the man who challenged me.
“I don’t have any idea why he challenged me, but I’m committed to running a very aggressive campaign. I take the challenge very seriously.”
Escalante says she has never received any kind of State Bar discipline, or received any sort of negative ratings, so the question remains: why was Escalante, sworn into office on Jan. 19, with just three days of services on the bench—following orientation and courtroom observation—faced with a challenge so soon into her rookie term on the bench?
Her opponent seems to offer no other reason than the desire to be a Superior Court judge.
Escalante remarks that a judicial challenge is “part of the democratic process,” saying of her challenger:
“He’s exercising the right to file against any seat. Judges are an elected position and we all know that there is the possibility any of us can face an election.”
Escalante—who declined to allow her picture to be taken during an interview—is admittedly unaware of the finer details of running for office. She doesn’t know how much money she will have to raise, or how much of a war chest she will need for the election.
She has, however, retained the services of campaign consultant David Gould to help steer her campaign. She says she plans to hit the campaign trail hard, but the judge is not exactly sure how her campaign will develop and is still in the process of devising a campaign plan.
“This is all so new to me,” Escalante says, remarking:
“I’ve never been involved in politics at all so I don’t know what exactly it will entail yet. But I certainly will have fundraisers and will go to events seeking endorsements.”
Escalante says that she has already received an outpouring of support from the legal and judicial community.
“I’m very gratified by the support I have from my colleagues,” Escalante says. “People that I have never met have reached out to me to offer their support.
“There are former colleagues who have reached out, current colleagues, numerous have offered to do what needs to be done.”
Escalante says she believes a judge should be patient, decisive and should make decisions that are predictable under the law.
“I think when both lawyers are surprised by a decision, that is not a good thing,” she remarks.
She mentions Judges Ann I. Jones, Carolyn Kuhl and retired Judge Carl J. West as jurists she will seek to emulate. When it comes to judges she hopes not to mirror, she does not list any names, instead, pointing out particular characteristics that she plans to avoid.
“Judges who are impatient or exhibit anger, those are qualities I’d like to avoid.”
What would it take for Escalante to lose her temper on the bench?
“I think I’m a person who doesn’t lose my temper easily,” she declares. “I think I have a pretty good control of my emotions and don’t plan to lose my emotions on the bench. I think I would take a break and take the time to pull myself back together.”
In terms of what she expects out of attorneys who stand in her courtroom, preparedness appears to be key.
“I’m a person who prides myself on being very well prepared and very thorough in my preparations so I expect attorneys to be to the same level of preparedness,” Escalante says.
Escalante began her legal career in 1992 as a law clerk for Ninth Circuit U.S. Court of Appeals Judge (now Senior Judge) Diarmuid O’ Scannlain after graduating second in her class from USC School of Law. At USC, she was also the editor-in-chief of the Southern California Law Review.
After her stint with Scannlain, Escalante joined Munger Tolles & Olson LLP, first as an associate from 1994-2001, then as a partner from 2002-11.
Prior to entering public service, Escalante was a partner at Manatt Phelps & Phillips LLP from 2011-14.
She then accepted a position as a senior trial counsel at the U.S. Securities and Exchange Commission’s Division of Enforcement. At the SEC, she served on a small trial unit of about seven to eight other lawyers.
Escalante was raised in Downey to a modest upbringing. Born in 1963, She attended school in Downey through grade school, then went to Marina High School in Huntington Beach.
When she was in the eighth grade, her mother went to work as an X-ray technician. Her father, a small-businessman, owned a tortilla flavoring business.
“I just had basically an average childhood,” Escalante says. “There were a lot of financial ups and downs in my background so we went through some very hard times which I feel is going to be something that is going to help me on the bench.”
“I feel like being able to relate to litigants who are not from privileged backgrounds is going to be something that will help me understand people who have struggles or who don’t have the kinds of safety nets that I obviously have now in my life.”
Father Wrote Mysteries
Her father, Jeff Sherratt, in his later years, wrote mystery novels, all set in Downey, the same location that Escalante would receive her first post.
“He was a small little publisher and really did well with them for someone that had never written in his life. He was a salesman and he would hand sell those books at Barnes and Nobles as they walked through the door.”
Escalante has a 22-year-old daughter, Isabella Escalante, who, she says, hopes to forge a career in television. She recently graduated from the University of California Santa Cruz.
“That’s one of the most important parts of my life,” she says. “She is a wonderful young woman.”
She’s also the sister-in-law of Deputy District Attorney Mary Ann Escalante, who is running for Office No. 20.
In her spare time, Escalante can be found jaunting through an art museum or enjoying a literary-fiction, mystery or science novel.
—Sean P. Thomas
Copyright 2018, Metropolitan News Company