Judge Hoping to Overcome Character Issue at Polls

The gilt-edged pages of his scrapbook are crammed with newspaper clippings, letters and campaign literature documenting San Fernando Municipal Court Judge Malcolm H. Mackey’s impressive 30-year legal career.

But conspicuously missing is a chapter in his career that Mackey, a candidate in the June 7 primary election for the Los Angeles Superior Court, says should be forgotten. Mackey ran for Superior Court in 1980 and lost after revelations that he was the father of three illegitimate children while he was married. He said it cost him the race.

Eight years later, Mackey is trying again. He and his supporters want to focus attention on his judicial accomplishments and bristle at the thought that his personal life will be re-examined.

“I’m concerned with judicial temperament and ability, and on those terms, Judge Mackey is well qualified,” said Billy Desmond Webb, head deputy district attorney for the county district attorney’s office. “It’s getting pretty close to National Enquirer-type reporting to bring it all up again.”

Familiar Argument

The argument is the same as those advanced by presidential aspirant Gary Hart, Sen. Joseph R. Biden Jr. and others who have been required to address questions about their personal lives or integrity. Such questions were not usually grist for public debate before the 1980s. Their emergence in recent years may take the edge off the issue in Mackey’s 1988 campaign, he and his supporters hope.

Mackey hopes that voters will have time to weigh the matter carefully this time, a luxury they did not have in 1980. Revelations about the illegitimate children came just 10 days before the election.

“It was a disaster,” Mackey said. “I had the race won before that. But there is a saying, ‘your time has come,’ and mine has.”

Mackey, a 58-year-old resident of Sherman Oaks, said that, sometime before the 1980 election, he had three illegitimate children with two women. He and his wife separated in 1979, he said. His wife learned of the illegitimate children during divorce proceedings and immediately told a newspaper reporter, he said.

Mackey had two children with his then-wife, an 18-year-old boy and a 14-year-old girl, whom he said he supports. The 14-year-old goes to boarding school and lives at home with him when school is not in session. His ex-wife, he said, died in September, 1986, after a radical mastectomy. He has provided financial support for the children born out of wedlock and has established trust funds.

“I was careful all my life, and you just get careless,” Mackey said. “These things happened years ago, and I vowed it would never happen again. I’ve accomplished some significant things in the judicial field since then.”

After losing the 1980 Superior Court race to then-Alhambra Municipal Judge John R. Stanton, Mackey returned to the Los Angeles Municipal Court. In 1984, he ran unopposed and was reelected to a six-year term. For the calendar year of 1985, his fellow judges elected him presiding judge of the 10-branch system, the largest municipal judicial district in the country.

Mackey is credited with instituting procedures that helped reduce what the county spent on court-appointed defense attorneys in Los Angeles Municipal Court. He took the post in the midst of a scandal over questionable billing practices by the attorneys, who are paid by the county to serve as counsel for the poor if the public defender has a conflict of interest or that office is overloaded. By the end of his term as presiding judge, the county’s costs had dropped from $8.5 million in 1984 to $6.4 million, according to the court administrator’s office.

“When presented with the problem and some viable alternatives, Judge Mackey took a leadership role in straightening out the situation,” said Edward Kritzman, court administrator for the Los Angeles Municipal Court. “The important thing is that the cost of counsel for indigent defendants has come down significantly as a result.”

Carl Jones, administrator of the Alternate Defense Counsel, an organization of private attorneys paid to represent poor defendants, is one of Mackey’s supporters. “Except for that mud-slinging last time around, he would have been elected,” Jones said.

But several attorneys, who preferred not to be identified because they appear before the judge in his San Fernando courtroom, said that Mackey’s behavior was out of line and deserved the attention it received.

“It reflects a looseness about him ethically that worries me,” one said.

‘Higher Expectations’

Richard Lichtenstein, a Los Angeles political consultant, said it appears that voters in the 1980 countywide election were troubled by the revelations because “people just have higher expectations of judges. They’re the guys in the robes who are supposed to be the fairest-minded in the land. Folks expect them to have lived very clean, pure lives.”

The Code of Judicial Conduct published by the California Judges Assn. states that a judge “should avoid impropriety and the appearance of impropriety in all his activities.”

Peter Gubbins, an investigating attorney for the California Commission on Judicial Performance, refused to confirm or deny whether any investigation of Mackey was carried out after the 1980 election. He cited rules protecting judges’ privacy. However, he did say that a judge has never been censured by the state Supreme Court for having illegitimate children in the commission’s 27-year lifetime.

Lichtenstein said Mackey will improve his chances of winning the election by addressing the issue early, when voters are not paying much attention, instead of at the last minute as in 1980. “A negative story published 10 days before the election could easily have turned the race,” he said. Despite the county bar association’s rating Mackey qualified and his opponent not qualified, Mackey lost the November runoff, with about 45% of the vote, against about 55% for Stanton.

No Real Ballot Opposition

At this point in the current race, however, Mackey’s past will not prevent his election unless more competitors enter. There are three Superior Court vacancies, with a fourth seat expected to open soon, and only four candidates, including Mackey, have declared candidacy. All four have hired the same political consultant.

The three other candidates, all municipal judges, said they will not make Mackey’s personal life an issue. They are Terry Smerling of the Van Nuys branch, Jerold A. Krieger of the Encino branch, and J. Michael Byrne of Rio Hondo. Winners will be assigned by the presiding judge of the Los Angeles Superior Court to serve either in a criminal, family law, juvenile or civil court, depending on the magistrate’s experience and the needs of the court.

Mackey began his career as a civil lawyer after graduating in 1958 from Southwestern University Law School in Los Angeles. He was in private practice 19 years. As a judge, he has sat in small-claims as well as criminal courts.

His childhood was one of learning to face limitations. An only child, Mackey was reared by his mother in an Irish-Polish-Italian neighborhood of Jersey City, and would see his father only periodically, he said. He spent his early years on crutches and in leg casts because of a disease that affected the formation of his bones. Mackey eventually overcame his disability and went on to play football in high school and to join the Marine Corps.

In 1951, he graduated from New York University with a degree in psychology, which he says helps him understand defendants and see through sham defenses.

Pragmatic Approach

Mackey first came to California to help a friend run a modeling agency, he said. Shortly thereafter, he decided to go to law school because he thought a legal education would make him a better businessman. In those days, everything he owned fit in his car.

Mackey is known to his clerk and bailiff as the “OK judge” because of his easygoing nature and tendency to often say “OK.” Like many judges, he is more popular among prosecutors than defense attorneys.

“The man has a good gut feeling for decision-making,” said Lee Harris, a deputy district attorney in San Fernando. “He does not like to waste time on irrelevant technicalities.”

Several defense attorneys who oppose his elevation to a higher court characterized Mackey as affable, but described his abilities with phrases such as “not very intelligent” and “ignorant of the law.” They said Mackey does not appear to have a good grasp of criminal law.

Dave Dolan, a deputy city attorney in San Fernando and one of Mackey’s supporters, said that, although Mackey is intelligent, he gets misjudged because “sometimes his brain works faster than his mouth.”

But Mackey smoothly articulates his motivation for running in the June primary. “I’ve done everything there is to do in Municipal Court,” he said. “We all have our challenges, and this one is mine.”

He said he expects to spend as much as $60,000 campaigning for the bench, $54,000 of that for a statement on the county’s sample ballot. Superior Court judges are paid $84,765 annually. Mackey earns $77,409 as a Municipal Court judge.