Two Private Practitioners Stage Lackadaisical Fight Against Prosecutor

Tuesday, January 28, 2020

Page 8

JUDICIAL ELECTIONS: Los Angeles Superior Court Office No. 129

Two Private Practitioners Stage Lackadaisical Fight Against Prosecutor

By ROGER M. GRACE, Editor

Prosecutor Kenneth M. Fuller’s campaign committee has a good deal of money in the bank—nearly half a million dollars—but it doesn’t look, at present, as if it will be necessary to spend much of it for their candidate to win. Aside from the decided advantage Fuller has with the ballot designation of “Deputy District Attorney, Los Angeles County,” his two rivals are not putting on much of a fight.

However, newly evolving campaign techniques preclude placing confidence in appearances that are based on conventional wisdom.

Glendale attorney Mark MacCarley, 68, gives the impression of being resigned to suffer yet another election loss. He was defeated in his 2010 and 2016 quests for election to the State Assembly and in his bid last year for a place on the Glendale City Council. MacCarley attempted to run in the March 3 primary for the Superior Court as “Retired Army General,” but was told by the Office of Registrar-Recorder that his chosen ballot designation was legally impermissible, and is listed on the ballot, simply, as “Lawyer.” MacCarley has no campaign committee and gives every appearance of having abandoned his effort.

While expenditures in Los Angeles County judicial races often amount to hundreds of thousands of dollars, the committee for West Hills family law attorney Bruce A. Moss, 66, in calendar year 2019 took in $3,965 in contributions and spent $4,076.82; for the period from Jan. 1 to Jan. 18, it garnered $1,075, and paid out $2,035.33. It devoted most of the funds to paying little-known political consultants and buying lawn signs. His ballot designation is “Attorney at Law.”

$500,000 Loan

The committee for Fuller, 62, raised only $490 in contributions during the period from July 1 to Dec. 31 of last year—but also received a $500,000 loan from the candidate’s mother, Sarah E. Fuller. From the beginning of this year through Jan. 18, the committee accumulated an additional $4,669.95 in donations. Its cash on hand amounts to $499.913.15.

Fuller ran unsuccessfully for the Superior Court two years ago. His mother loaned his 2018 campaign committee $150,000, of which $88,000 was not repaid.

Her loan to the present campaign committee does not necessarily indicate a willingness on the part of the lender to have the entire $500,000, or anywhere near that sum, spent. The loan was made Nov. 4, and reported on that date to the Secretary of State’s Office. At that point, three possible competitors for Office No. 129 had taken out declarations of intent to run for the seat, and one had filed his declaration. Declarations may be filed for multiple seats. Large loans have, in the past, been made to campaign committees in hopes of scaring off potential rivals by virtue of the size of the assets in the committee’s coffers. Whether as a result of the loan or not, the three who had, at that point, indicated an interest in seeking Office No. 129, each opted to run for another seat.

Probabilities Not Certainties

The apparent inactivity on the part of MacCarley as a candidate, and the seeming laggardness of the Moss campaign, indicate the strong probability of a win by Fuller. However, in past judicial elections in the county, strongly probable winners have lost.

The chief case in point: in 2006 an obscure lawyer, Lynn Olson, who had, for most of the years since she gained admittance to the State Bar been on inactive status (she ran a bakery and was known as “the Bagel Lady”), challenged a leading member of the Los Angeles Superior Court, Dzintra Janavs; Olson pledged not to spend more than $1,000; then—right before the primary—she poured about $100,000 into the campaign, bought her way onto slate mailers, and won election. (Aside from that conniving, Olson—who remains a member of the Superior Court—had the advantage of a common name over the foreign-sounding one of the incumbent.)

Olson’s campaign was orchestrated, on a volunteer basis, by a professional campaign consultant, Fred Huebscher, who uses the moniker “Dr. Slates.” The chance that MacCarley or Moss would, or could, mimic Olson’s tactic in hopping onto slates at the eleventh hour are remote, given that Fuller’s campaign consultant is David Gould, who is known to have rapport, like Huebscher, with slate vendors.

Unknown Factors

Too, the continued efficacy of slate mailers is in doubt, given the increase in early voting by absentee ballots—rendering uncertain when slate mailers should hit—and the swelling reliance by candidates on the use of social media, and the apparent efficacy of that technique.

Unknown is whether a last-minute, surprise social media blitz could have the same effect as the unanticipated deluge of Olson’s slate mailers, turning a seemingly dormant campaign such as MacCarley’s, or a half-hearted one such as Moss’s, into a winning one.

Fuller obtained his law degree from USC; MacCarley received his from Loyola; Moss is a graduate of the San Fernando Valley College of Law.

KENNETH M. FULLER

Prosecutor Has Served in Various Units, Now Deals With Environmental Crimes

Two years ago, Los Angeles Deputy District Attorney Kenneth Fuller was defeated in a bid for the Los Angeles Superior Court. The victor—Rene Caldwell Gilbertson, then a principal deputy county counsel—had a campaign advantage: being a woman.

This year, Fuller is in a race with two males. With a superior ballot designation and a stuffed campaign war chest, he is the favorite to win.

Fuller—who is endorsed by District Attorney Jackie Lacey and the immediate past district attorney, Steve Cooley—has a complex litigation assignment, handling prosecutions of environmental crimes. He undertook that assignment in 2016.

His office evaluation for the period of Dec. 2, 2016 to Dec. 1, 2017—belatedly filed on Nov. 27, 2017, gives him the rating of “Met Expectations (Competent)”—akin to a “C” grade in school. His supervisor, Lowell Anger, wrote:

“Mr. Fuller is a hardworking and dependable deputy. During the rating period, his legal acumen was on point and his written work product was well-organized and persuasive. He kept his supervisors informed of legal issues and strategies in his cases but completed all of his work in a timely and thorough manner, with minimal supervision.”

Anger added:

“Mr Fuller arrived to the Division and hit the ground running. He fully immersed himself into his work, producing excellent oral and written work product. In addition to handling his own caseload, Mr. Fuller frequently assisted fellow deputies with court appearances and legal research.”

FULLER

Higher Rating

For the period of Dec. 2, 2017 to Dec. 1, 2018, Anger gave Fuller a rating of “Exceeded Expectations (Very Good)—a “B.” He said in a Dec. 3, 2019 report:

“Mr. Fuller came to the Division as an experienced complex litigator, with excellent research and writing skills; however environmental prosecutions were unlike any cases he had previously handled. He faced a strong learning curve, particularly in understanding the complicated scientific principles underlying many of our cases As noted in his last evaluation. Mr. Fuller hit the ground running and submersed himself in his caseload as well as the law and science of environmental prosecutions Equipped with his previous trial experience and his diligently acquired knowledge of environmental prosecutions, Mr. Fuller developed into a first-rate environmental prosecutor.”

The supervisor noted:

“Additionally, Mr. Fuller is a graduate of the prestigious Film School at USC and his digital presentations are always innovative and thoroughly professional.”

Through the years, ratings for Fuller—who has been a gang homicide prosecutor and has prosecuted persons accused of sex crimes, elder abuse, and domestic violence—have bobbed between “Met Expectations” and “Exceeded Expectations.”

In the evaluation for Dec. 2, 2014 to Dec. 1, 2015, Anger—who had supervised Fuller in the hardcore crimes unit in Compton—said in a tardy March 15, 2017 report:

“Mr. Fuller typically worked more than 50 hours per week, including weekends and holidays. He was always in an upbeat mood, unflappable, and never panicked.”

Others Comment

One judge, in whose courtroom Fuller was a trial deputy, terms him a “very competent and conscientious lawyer.”

A veteran prosecutor remarks:

“Ken Fuller is a stand up guy. He is passionate about his work and diligent in his preparation. I had the opportunity to observe him in his capacity as a [Victim Impact Program] deputy and I was extremely impressed by the efforts he made to assure witnesses would appear in court to testify. In one case, he personally picked up a pregnant victim and brought her to court because the detective was unavailable to do so. Had he not, the case would have been dismissed and the victim would have been in great danger. His above and beyond work ethic made a great impression on me.”

However, some deputy public defenders view him as lacking forthrightness, and one critic labels Fuller “a slow witted plodder who will probably fade into obscurity on the bench.”

Fuller became a volunteer law clerk for the District Attorney’s Office in 2004; was admitted to the State Bar Dec. 1, 2005; and became a deputy district attorney in 2006.

Ballot Designation

In 2018, Fuller sought to use the ballot designation of “Deputy District Attorney, County of Los Angeles/Captain, U.S. Air Force.” However, under amendments to Elections Code §13107, effective Jan. 1 of that year, a government lawyer was allowed to use one “actual job title.”

When this was pointed out to Fuller, he voluntarily abandoned reference to his military post. He is a captain in the Air Force Reserve, serving for one month each year in the Judge Advocate General Corps.

His wife, Roshni Gandhi Fuller, is a former prosecutor who is now in private practice as a special education attorney.

MARK MACCARLEY

Lawyer Made Misstatements In Seeking Approval of Ballot Designation

Mark MacCarley is a lawyer. And that’s how he will be identified on the March 3 ballot—contrary to his desire. What he wanted to appear below his name was “Retired Army General,” a ballot designation that was allowed in 2016 when he ran for the state Assembly for the 43rd District (coming in third among eight candidates in the June 7 primary).

Although questions were raised by his opponents in the current judicial race as to the permissibility of the designation, but MacCarley insisted he would keep it, up to the point where the Registrar-Recorder’s Office last Dec. 10 told him, “No.”

Code of Regulations §20716(h)(4) says:

“A candidate may not use the word ‘retired’ in his or her ballot designation if that candidate possesses another more recent, intervening principal profession, vocation, or occupation.”

He has not held a military post since 2015; he has, since 2015, been (as he was before that year) in law practice.

In this screengrab, Mark MacCarley presents his candidate statement for Glendale City Council.

Ballot Designation Worksheet

The candidate tried to skirt that fact when filling out the ballot designation worksheet he provided to the Registrar-Recorder’s Office.

He stated as justification for the his chosen label: “RETIRED AS A MAJOR GENERAL (US ARMY) ON JAN. 30, 2015, AFTER ACTIVE SERVICE DUTY WITH THE ARMY FROM FEB 4, 2003 TO JAN. 30, 2015.”

The form seeks “Employer’s Name or Business.” His employer is his Glendale law firm, MacCarley & Rosen. He filled in: “UNITED STATES ARMY.”

Under “Current or most recent job title” MacCarley wrote: “DEPUTY CHIEF OF STAFF TRADOC-ARMY.” TRADOC stands for “Training and Doctrine” command, a unit with recruitment and instruction functions. Yet, his current title, according to his Linked-In page, is “Managing Attorney/Consultant MacCarley & Rosen, PLC.”

MacCarley signed the form on Nov. 29, 2019. The form does not recite that it is executed under penalty of perjury.

Law Practice

The candidate was licensed to practice on Dec. 18, 1975, and remained on active status during the period from 2003-15 when he was in the Army—and, in fact, filed papers and made appearances during that period. His law office website says the firm was “[f]ounded in 1976,” with MacCarley being the founder, and has “continuously served the needs of clients for almost forty years.”

MacCarley—who was in charge of various “sustainment commands” (providing such services as maintenance, transportation, and supplies), as well as the First Army Reserve Support Command—explains:

“When deployed overseas I would draft motions and appellate materials in my quarters (various locations throughout the Middle East and Central Asia) during my free time (what free time there was between operations and missions) and electronically transmit such documents back to my office for proofing and filing by my staff and argument in court by attorney(s) working in my office. When on my several Rest and Recuperation (R&R) leaves during which I returned home (Glendale) from overseas for brief periods of time, I would even make court appearances on cases that were active in my office at those times.”

He continues:

“When assigned to US Army facilities in the United States, full time, I would make it a point to fly back to Los Angeles almost every other weekend (Active Duty Soldiers at CONUS [the 48 contiguous U.S. states and the District of Columbia] duty stations do not routinely work on weekends) to meet with clients and give direction to my office staff and my various contract attorney(s). I would also find a little time to spend with my wife and teenage children during those all too short weekends. I would sometimes even take a few days of leave from the Active Army to personally appear in various courts on some cases requiring my expertise. I paid for all these flights back and forth (and all other associated expenses) from my various Army duty stations to Los Angeles (Glendale) out of my own pocket. I would also work on transactional documents, motions and appeals, during the week, usually beginning at about 1900 hours [7 p.m.] (Monday through Friday) and continuing until late at night at my various residences within or just outside of my assigned Army duty stations.”

MacCarley adds:

“Maintaining some semblance of a law practice while serving my country over this long period of time was a small price to pay in comparison with those men and women who suffered grevious injuries or lost their lives while serving in the US Armed Forces. I was not one of the more fortunate public employees who found themselves in the Armed Forces during this period (mobilization), but who also received differential pay from their public employers, representing the difference between what they earned in uniform and what they earned as public employees. I was able to keep my law firm open during my extended Army service only because of the commitment and sacrifices of my employees and the ‘devotion of my clients.’ ”

Elaborating, he says:

“I received a Reserve Commission in the United States Army in 1983. I spent the first 19 years of my military career as a classic ‘drilling Reservist,’ meaning, generally, service for two days a month and for two full weeks a year (part time). During those years I worked full time in my law firm. After the ‘Global War on Terrorism’ commenced in earnest in 2003, I spent almost all my time on Active Duty (full time), but continued to keep my firm afloat….”

In addition to practicing law, MacCarley serves as a member of the Glendale Civil Service Commission, does occasional commentary for CNN, is a military consultant/adviser to private companies, mentors veterans, and is a real estate broker.

BRUCE A. MOSS

Sole Practitioner Whose Office Is In His Home Mounts Campaign, Claims Decades of Experience

MOSS

Bruce A. Moss is a family law attorney whose office address is that of his home in West Hills, a neighborhood in the west end of the San Fernando Valley. He was admitted to practice on Nov. 29, 1979.

His law office website declares:

“Bruce has practiced in the area of Family Law since passing the bar.”

While Moss has practiced family law subsequent to his licensure, he has not practiced family law ever since he was admitted to the State Bar, as the statement on his website might be interpreted as connoting; he was on inactive bar status from Jan. 1, 1993 to March 6, 2001.

Moss has, through the years, engaged in various ventures including horticulture and real estate.

The law office website says now, as it did as of Oct. 18, 2016, that he “has been practicing in the area of Family Law for over 35 years.” However, as of that point in 2016, he had been on active bar status for less than 29 years.

His campaign website, by contrast, advises:

“Bruce is a family law attorney who has been practicing for over 30 years.”

Last December, Moss claimed the ballot designation of “Attorney/Judge Pro-Tem.” He had been serving, since 2017, in the Los Angeles Superior Court’s program under which attorneys, who undergo training, act now and again, during half-day sessions, as judges pro tempore in minor matters.

As the METNEWS pointed out in a Dec. 3 article, the Court of Appeal for this district held in 1988, in Luke v. Superior Court, that “neither a court commissioner, nor any other individual who is not a ‘judge,’ as that term is defined in the Constitution and statutes of this state, may utilize a ballot designation containing the word ‘judge’ or a derivative thereof.”

Moss met with this newspaper on Dec. 4. He said he was on his way to the Registrar-Recorder’s Office in Norwalk and would change the designation—as he did, that day—to “Attorney at Law.”

The major catapult to Moss voluntarily making that revision, however, was apparently a phone call the night before from Los Angeles Superior Court Judge Stuart Rice, who heads the pro-tem program, warning that by politically capitalizing on his pro tem service, he would jeopardize his continued acceptance in that program.

Moss declares:

“I have the highest degree of integrity.”