|
 |
|
THE CAPTAINS AND THE KINGS DEPART:1
TALKING ABOUT DONALD B. KING
By Jennifer Jackson, JD (Family Law News, Judicial Survey, Vol.
19, No. 1)
Judicial Survey
If he be not fellow with the best king, thou shalt find the best king
of good fellows. SHAKESPEARE, King Henry V, act V, sc.ii, l. 259
That the king can do no wrong is a necessary and fundamental principle
of the English constitution. Sir William Blackstone 1723-1780, Commentaries
[1765-1769], introduction, bk. III, ch. 17.
This judicial survey celebrates the career of Donald B. King, retiring
Justice of the Court of Appeal of the State of California, Division 5,
in the words of his judicial cohorts2. In speaking with them,
I was struck by Justice King’s ability to instill a sense that he had
taken a special interest in each person, that he had advanced each career
and that he had enriched each life in a very personal way. This is a gift,
which Donald King has passionately applied to the advancement of our field.
Let’s hear from his colleagues on the bench:
The Hon. J. Clinton Peterson
Justice of the Court of Appeal for the State of California, First
Appellate District, Presiding Justice, Division 5
We will really miss him. I’ve known Don King since 1988, and have worked
closely with him since 1992, when I became presiding Justice of our division.
Don is one of the most highly regarded members of our court and has been
very active in internal administration, serving among other things as
chairman of the personnel committee. He is one of our senior people, with
an interest in - and a long history with - development of court policy.
Don is so easy to work with, always finding ways to ameliorate our initial
differences in a given case. In all the time I’ve been in this division
we have only had one or two dissents, which is quite remarkable. Of course,
Don is our family law guru. We remembered the days when you had to make
a pitch for extreme cruelty in order to get your divorce, which could
constitute anything from eating crackers in bed to hitting someone over
the head with a baseball bat. Those were hard times and these tactics
generated a lot of animosity, between the parties and toward the practice
of family law itself. Don has given respectability to that practice, focussing
a lot of attention on a very critical area of the law that was somewhat
ignored.
You might not be aware that Don is quite an athlete. He played on the
same USF basketball team with Bill Russell and Casey Jones, I believe,
and fondly recalls a barnstorming mission with the team playing basketball
all through Central America. Don is also a swimmer and loves the Russian
River: he and Nikki have a lovely place in Healdsburg which they share
generously with their friends. One particular summer afternoon on the
Russian River comes to mind when I overturned my canoe with Mike Hanlon
in it. I guess the best thing I could say is that he’s the kind of guy
you’d like to go fishing with. I consider him one of my best friends and
I’m really sorry to see him go.
The Hon. Harry Low:
Retired Justice of the Court of Appeal for the State of California, First
Appellate District, Division 5:
I’ve known Don for more than 30 years now, not only as a colleague but
as a friend. Don and I campaigned for his close friend Leo McCarthy together
in 1963, when I was president of the Chinese American Democratic Committee.
Don and I were at San Francisco Superior Court together and then went
on the appellate bench together in 1982, assigned to the same division
for nine years with Justice Hanning. Don’s office was next door to mine;
we talked several times a day and went to lunch 2 or 3 times a week. Don
is one of the more active social promoters at the court. In addition to
rounding everybody up for lunch two or three times a week to keep us in
close touch with one another, he believes in the importance of staying
involved in outside social activities that preserve our connections with
the Superior Court and the community at large.
Don likes to talk about his basketball days at USF and to put things into
basketball terms. For example, every once in a while we’d get a lousy
opening brief from one side, which invariably produced a lousy responsive
brief. Don would always remind us that "when one team plays poorly
the other team seems to fall to that level". We had one of the
more livelier divisions and we had one of the more current divisions in
terms of case management, in that our common goal was to get cases off
our desks. Of course whenever we got a case in family law it was always
Oh this one’s yours, Don. We had a wonderful working relationship;
we had a marvelous ability to reach consensus and it was rare that we
had a dissent.
Don’s work in family law is legendary, and his impact is probably going
to be felt for many many decades. His impact through the Rutter programs
is statewide, national, and maybe even international. This legacy will
endure. Don’t forget that he has written some very fine decisions in non-family
procedural, environmental and other areas of law, which are lead decisions
and often cited. In addition to his judicious fair decisions, his skills
as a good manager have resulted in so many innovative ideas that are taken
for granted: let’s create a program for mediating custody matters;
let’s have early control of a case and avoid duplication and high costs;
how about using the telephone for conference call; let’s have meetings
that will short cut the proceedings; let’s get reports to guide us and
special masters to help us and so forth. What makes the ideas
successful has been his ability to put the ideas into practice and show
that they work.
I am convinced that Don will continue to be much sought after, and won’t
let up as long as he is doing what he enjoys, which is work work work.
When he recently received the Sir Thomas More humanitarian award from
the University of San Francisco normally given to a Catholic layperson,
he confessed with typical candor "I want you to know I’m not Catholic"
which was absolved by their reassurances that "If it doesn’t bother
you, then it doesn’t bother us."
The Hon. Zerne P. Haning III
Justice of the Court of Appeal for the State of California, First
Appellate District, Division 5:
I can’t imagine what it will be like to lose Don. He is just a wonderful
guy to work with, and his management skills are quite extraordinary. We’ve
been together since 1983, when we started Division 5 with Harry Low. When
we came aboard, the court had an enormous back log; many of the cases
that were given to us had been fully briefed for over four years, most
for at least three years. It was a nightmare. Lawyers were dead, laws
repealed. But somehow we did it. You might not be surprised to learn that
we did it by disregarding the prior conventions of the court - we just
took it over and did it the way we wanted to. It did not take us long
to get to where the court is now: before a case is fully briefed we are
calendaring it for oral argument.
But much more importantly, there is Don himself. When you work with someone
day in and day out seven days a week for thirteen years you get to know
him. Our offices are next door. We don’t pass a lot of paper around; we
spend a lot of time talking together. We have had vigorous debates over
cases but they’ve always been honest discussions and differences of opinion
rather than verbal fistfights. This is they way it ought to be: thirteen
years without a harsh word or a hurt feeling.
Ideally, you want to work with someone you trust, someone you respect,
someone who does his homework, an intellectual with whom you can discuss
legal issues and strategy and explore the law, someone who does the job
properly. You want to be able to walk away and not worry about what’s
happening "back at the ranch". You want someone who will carry
his full share of the load up to the last day. If I could say anything
that sums up my feelings it would be that if I were going out tomorrow
and reopening my law office I’d want Don to come with me.
The Hon. J. Anthony Kline
Justice of the Court of Appeal for the State of California, First District,
Presiding Justice, Division 2.2
Don and I were appointed to this court on the same day, so I’ve known
him for a quarter of a century. In my opinion, Don’s extraordinary influence
in family law has its genesis in one of the idiosyncracies of the San
Francisco Superior Court. Because it serves a small county, San Francisco
is the smallest of metropolitan superior courts. When, as was the case
in here, there is only one judge in the department, this judge can exert
extraordinary influence in the whole practice area. And Don did just that.
First by longevity - simply by his duration on the family law bench. Second
but more significantly by articulating in a very visible way what his
policies were. Once everyone knew the rules, conflict significantly diminished.
After awhile, other judges in the Bay Area began to take their cues from
him, and his views generally became influential.
He has enhanced that influence by his willingness to go on the lecture
circuit. He’ll go to an opening of an envelope if it has family law
written on it. And of course, the benefit of his knowledge and experience
has been invaluable to the appellate court. If I have a difficult family
law issue, he is often just a few steps away and always willing to talk.
While we don’t delegate the decision-making process, his views
in this area are routinely sought out by other justices who are faced
with a difficult family law issue. There is no question but that in this
sense he has had an enormous influence on the law being made at the appellate
level. Equity is given a lot more play in family law than in other areas,
and one of the things contributing to Don’s influence is the perception
that he has pretty good judgment about what is fair. Don is not just an
abstract thinker, he is a fine human being. I’m going to miss him.
The Hon. Isabella Horton Grant
Judge of the San Francisco County Superior Court [Probate; formerly
Family Law]
Don and I had cases together as lawyers [and settled them all],
then I practiced before him, and then I succeeded him as Domestic Relations
judge in San Francisco. When he was first appointed to the San Francisco
Superior Court in 1976, you can’t imagine the chaos: family law matters
were only heard on Fridays, and assigned out to four or five judges. When
we heard about his appointment, members of the family law community invited
him to my house for a drink and to plead with him to take and to keep
the domestic relations assignment. Don followed our advice
[I like to think we had something to do with his career], took the appointment
and stayed until 1982, when he was elevated to the Court of Appeal and
I succeeded him to the family law bench. The department had been set up
beautifully for me. Don had devoted all of his time and energy to the
job instead of just treating it as a poor stepchild. He did absolutely
marvelous things with the department, and his impact was statewide. Whatever
is good about the family law department in San Francisco is due to him.
For example, he and Jeanne Ames started the custody mediation process,
which became mandatory for all California. It was a joy to practice in
front him: he was consistent, he’d thought about your case, he liked the
job, and he realized how important it was. It was a joy to follow in his
footsteps, and it is a joy to be his colleague and friend.
Jeanne T. Ames
Former director, San Francisco County Family Court Services
I knew Don King when he was a young lawyer in the West Portal district.
We worked on several cases together and I found him to be hard working,
conscientious and concerned about children. We started working closely
together when he was appointed to the domestic relations department in
1976, and I was a staff member.
When I began working in 1970 with Family Court Services (then known as
the Domestic Relations Commissioner’s Office), I thought I had the ideal
job. But the only things available to people were marriage counseling
and custody evaluations from the counselors, or court orders from the
bench. I began to realize that we were doing tremendous damage to families.
But there wasn’t anyone very interested in changing the system. Then Judge
King took the bench, and began sending people to us to "negotiate
a settlement" on behalf of the children before he would make any
permanent orders or permit evaluations. It just worked out great; we had
amazing results. People around the state started to do some of the same
kinds of things, and Don and I and many others actively encouraged legislation
that would make mediation mandatary prior to a judge making any permanent
order about children’s custody. This became the law on January 1, 1981.
Don, Judy Wallerstein, Isolina Ricci and I then traveled all over the
state of California telling people what mediation was and how to do it.
Judge King was also part of a group of us who set up a three day retreat
at Vallombrosa in Menlo Park in September of 1982; this was the first
time judges and mediators had come together to talk about mediation and
child development. After that we organized this on a yearly basis to educate
people about mediation and problems for parents going through the court
system, and this was the genesis of the Family Court Services Coordinator’s
Office.
When I first started in Domestic Relations, the assignment of family court
judge was bottom of the barrel, the new kid on the block, and the least
prestigious thing to which you could be appointed. During the time Don
King was on the bench, it became an appointment that judges were seeking
all over the state. He gave stature and importance to what happened to
people going through divorce and what happened to their kids.
One of the things that made him such an effective judge was the fact that
people felt they were heard. He had the capacity to listen to people,
to absorb what they were saying and to let them know that he had considered
what they thought and what they felt in making his decision. We were able
to see this directly as clients would tell us "Maybe I didn’t
like his decision but he listened to me, and I know he thought about what
I said." This led to acceptance by parents, but also led to a
family court that was very predictable. Lawyers knew what to expect and
how to prepare clients, and client felts like they were fairly treated.
He gave people dignity.
Don began writing and speaking, and commanded national and international
attention. He was able to bring leadership to the field, to network with
people of like interest around the state and the country, to get judges
into dialogues about these matters as well as family court mediators,
counselors and evaluators. Don and I were a good combination at the right
time with similar interests and a dedication to the proposition that things
could be better for kids and for parents.
The Hon. Roderic Duncan
Judge of the Alameda County Superior Court [family law], retired.
When we were both young lawyers, Don King and I were active in
San Francisco Democratic politics together. Those were the great days
when the democrats ran the state and young lawyers were very much in demand,
standing around spouting wisdom for politicians. When I was appointed
by Jerry Brown to the muni court and completely jazzed about being a judge,
Don and I had lunch to discuss what it was like and whether or not he
should accept an appointment himself. My glowing hyperbole turned out
to be a bit irrelevant, in that he leaped right over me directly into
Superior Court. Don became a family law judge, while I spent the next
11 years in criminal and civil court. When I finally became a family law
judge, I felt like Rip Van Winkle hearing lawyers rattle off buzz
word case names that stood for Don’s propositions. While I was looking
the other way, Don had mapped the whole territory.
Don King has elevated the status of family law by the opinions he has
authored, by his dedication to the education of lawyers and judges on
the subject, and by his leadership. His article urging family law reform
was the major impetus for Family Law 2000, which is the subject of the
Quinton Kopp bill and the judicial council family law committee project
on reform. My only reservation about Justice King relates to the unnecessary
footnote 6 in his opinion in In re Marriage of Smith, where he
drones on about what a great trial judge Agretelis is - or was. It was
true, of course, but it has made Judge Agretelis even more difficult to
live with[!] My personal favorite is In re Marriage of Stevenot.
Who else could have written an opinion describing the OSC scene and the
pressures of a crowded family law motion calendar? Who else ever bothers
to do more than decide only the minuscule point raised in an appeal, leaving
us all hanging about what we do in a case with a slightly different fact
pattern? Rejecting that annoying practice, Don’s opinions provide guidance
about related issues that need definition and interpretation. It’s such
a contrast to the recent Burgess decision. Here the Supreme Court
comes out with a major decision for which everybody has waited months,
and now we’re all walking around shaking our heads wondering what did
they mean? You never leave a Don King decision saying what did
he mean?
The Hon. Kenneth A. Black
Judge of the Los Angeles Superior Court [family law]
Truly more than any other individual, Don King has impacted the way
family law is actually practiced. He is the leading thinker in this area;
his decisions are treatises of the law which go well beyond just deciding
the issue in a perfunctory fashion. These decisions educate California
lawyers and quite frankly California judges about where the law is, where
it is going, and why it is going there. His decisions are insightful.
Smith, for example, encapsulating a major source of hostility that
can’t be avoided [where the paying spouse says "I can’t afford to
pay support" the supported spouse says "I can’t afford to live
on my support" and Don says they’re both right]. His decisions
teach: such as his elucidation of the competing policies of temporary
and permanent support in Olson. His decisions govern the daily
operations of family court: such as the Hebbring endorsement of
dealing with conversion, the limits on and possibilities for delegating
authority, and other practical approaches to things that burden the trial
court in what is already an overly hostile situation. Without the Stevenot
procedure [being able to question litigants from the bench] trial
courts could not function. Don gave us Richmond orders as the
trial judge in that case. Don gave us Cream, which lays out
thirteen different ways to divide property [I like to think I contributed
one of those methods, which came from choosing up sides for stick ball
when I was a kid growing up in Brooklyn.] His decisions are provocative.
Baker for example, suggests that there might be a situation where
you can modify spousal support without changed circumstances. His Fini
criticism of guidelines as a disincentive to working more and increasing
the pie is right on target; his comments about the micromanagement
of people’s lives by the courts needed to be said.
Don teaches us by example that " no one said that judging was
easy - sometimes you have to bite the bullet and do what you have to do;
as to what you can’t do, you should try to get the litigants to let you
do it anyway".
The Hon. Leonard P. Edwards
Judge of the Santa Clara County Superior Court [formerly Family Law],
Juvenile Division
Don was my first teacher in family law. When I was a new Superior
court judge, he was the guru who took a special interest in me
and taught me what family law was all about. He helped me understand what
family dynamics were and how courts can help families deal effectively
with their cases. We’ve been friends ever since. We have worked together
with the Association of Family and Conciliation Courts, both presidents
at different times, and we’ve worked on innumerable projects together,
although one of my pet projects wasn’t exactly one of Don’s, who saw court
consolidation as the coming together of two under-resourced courts.
Don King is the judge who made family law a distinguished practice in
California. He’s the one who was able to bring energy, organization and
solid thinking to an area that was not popular with the judiciary and
still isn’t very popular. But he moved it up a number of notches in the
esteem of his colleagues so that it is now a respected field. He is probably
the most important person behind the support for mediation in family law,
probably because he thought so highly of and worked so well with Jeanne
Ames, who was the person in his mediation unit up in San Francisco. We
now have mediation all over the place; it is now an integral part in what
we do not only in family law but in dependency as well. He was there at
the start. He is the pioneer. And I thank him.
The Hon. Rex Sater
Judge of the Sonoma County Superior Court
I got to know Don when he was still a trial judge: he became and continues
to be a mentor for me. He gave me various ideas about how to handle the
calendar quickly, and techniques for handling the cases effectively. He
got me started on having young law students screen these files the day
before the hearings; he suggested various techniques to deal with things
on the OSC calendar without bogging down. His assistance and encouragement
has had a lot to do with my staying on in a family law capacity.
Don King is the leading thinker in this area and just about wrote modern
family law. He advanced it like crazy, moving it up in terms of the level
of expertise required to handle it properly, its prestige, and the need
for committed judges. You can’t measure his contribution; its hard to
say we are losing him, since I am sure he will carry on - teaching and
proselytizing. In any case, it is always good to know that Don is there.
The Hon Jill Robbins
Commissioner of the Los Angeles County Superior Court [family law],
retired.
I have had a lot of fun over the years teaching Rutter group programs
with Don; I am invariably the designated reporter on Don King decisions,
which frankly are our major signposts. Just about every time you pick
up an important family law opinion, Don King has written it. You can usually
tell after the first two paragraphs. There are very few appellate opinions
that break new ground, but he seems to be in the forefront. He’s an important
person in the rear flanks as well. It’s hard to think of anybody more
knowledgeable...for that matter, more difficult to turn around to your
own point of view. In any case, he is just remarkable.
The Hon. Barbara J. Miller
Commissioner of the Alameda County Superior Court [Family Law]
Even though we fondly refer to him here in Alameda as King Don, the thing
that always strikes me about him is that he is a man who has handled the
ascendency to his position of power graciously. Even though he is so highly
respected and so revered by so many people he treats everyone with great
dignity and respect, even if the person might be new to family law. Don
is always interested in hearing new and interesting opinions, always interested
in what you think and why you might think differently than he does. He
doesn’t sit in his ivory tower spewing forth his decisions; he still has
contact with people who do this every day - judges, lawyers and even litigants.
He never acts like the icon he’s become.
The Hon. Richard E. Denner
Judge of the Los Angeles County Superior Court [Family Law]
Mr. Family Law. Don is such an impressive guy. He just gets people
to do things. I once asked him how he was able to get the San Francisco
family law bar to let him do all the things he was doing when he was the
Family Law Judge. His answer? "You know, I just did them and they
went along with it as though it would be the most natural thing in the
world". If I had tried to do any of these things in my courtroom
there would have been people marching out front with pickets and torches.
When I first ran across Don he had this odd but interesting little book
he was selling [proceeds, by the way, donated to the Bar Association].
It was an exposé if you will of all of his personal tendencies
on the bench. It had to have been enormously conducive to settlement;
a lawyer could sit her client down and say "look...there’s no point
in pushing this issue because the judge is going to do this."
He liked to lure people away from the standard adversarial type proceeding
and convince them to in effect let him run their cases, telling them it
would be cheaper and more efficient and a lot less painful. But this is
a big responsibility for a judge, who then doesn’t have the checks and
balances the system provides. I think he kind of downplays his own personal
power: Don King can make this work, but can anyone else? To this he says
"Oh come on, anyone can do case management." That’s Don
King.
The Hon. James W. Stewart
Judge of the Santa Clara County Superior Court [Family Law]
I have done Rutter Group updates with Don King for about six years.
We are doing our current update program for five weekends in a row, 9
hours of presentation each weekend. I am just exhausted, while he seems
unfazed. He has a level of energy that is just incredible
He is the intellectual leader in the area of family law. His retirement
will be a great loss: other judges and even other appellate divisions
have been willing to defer to his expertise. I am afraid that now we will
not have a single defined leader on the bench to whom people can address
questions and who will champion their concerns. I would
have to say that his biggest frustration is that unlike his fellow justices,
legislators tend to ignore people who have knowledge and experience in
the area [i.e.: himself.] Instead, legislators listen to their constituents,
whether it be a fathers’ group or a mothers’ group - or worse, try to
remedy their problems with their own divorces. However, at our last Rutter
Group presentation his wonderful sense of humor about all of this came
through: "I expect the legislature to move right away to "correct"
the Burgess case. None of the legislators can leave the State of California
and now their spouses can move away with their children!".
The Hon. Thomas J. Mellon, Jr.
Judge of the San Francisco Superior Court [Family Law]
I first met Don and Nikki in the course of a political campaign
in 1976, when I was running for school board. We didn’t have much contact
after that until I took the bench, but since then he has been extremely
helpful and encouraging. Don has a wonderful ability to let a new, inexperienced
judge feel confident. You never get the impression that he has anything
going on except talking to you. He wants to be helpful when you want help,
but he doesn’t want to tell you what to do. The speed with which he can
zero in on a problem is truly amazing. In essence he has taught me that
I am dealing with a whole bundle of considerations that are simply quite
different than what you find in a civil trial department, and these need
to be handled quite differently. He emphasizes the importance of letting
people - especially the parties - have their say, and then letting them
know that you have listened to what they said. Don King has a great
combination of skills. He maintains a tranquility about it all that is
very reassuring. This is an effective counterbalance to the undercurrent
you pick up from a lot of fellow judges, who have this impression that
family law is a special place in hell where you are constantly dealing
with ridiculous and annoying complaints. Instead, Don gives us a very
strong sense of the importance of family law and its positive aspects,
and gives it rationality and coherence. He comes at teaching with the
same gentle easy assurances with which he approaches everything. With
a brand new lawyer, he is collegial and encouraging. With a new judge
he’s wonderfully practical, emphasizing the importance of the role of
the decision maker and in making your policies known to those who would
appear before you. Don is a person who is really very much at peace. He
enjoys life and has a good sense of humor and balance. He enjoys what
he does, he enjoys what he’s done, and he looks forward to what’s next.
The Hon. J. E. T. Rutter
Judge of the Orange County Superior Court [Family Law], retired ["I’m
going to see if Don wants to join me in my retirement just sitting here
on the beach throwing rocks in the water."]
Some years ago "King IRMO the First" earned this awesome appellation
by walking across the San Francisco Bay to the courthouse where he rendered
dissolution a more pleasurable experience by elbowing the lawyers aside.
Thereafter, his brief love affair with legislators [and their staffs]
caused him to propose the ultimate cure for a presently chaotic system:
He seeks to make it so simple that legislators and lawyers cannot understand
it. My hat is off to this courageous oracle of common sense, planted like
the sphinx amid the sandstorms of social politics and conceptual confusion
worse confounded.
In Closing...
As Queen of the South to his King of the North, Don’s counterpart sums
it up quite nicely:
HAIL TO THE KING
Can you imagine, can you believe?
The time has come for this Justice to leave?
How much do we owe him? Need we ask.
Just thinking of this is quite a task.
Far reaching opinions on subjects from needs to hidden assets
Every part of family law, each one of its facets
Has come within his concern and scrutiny.
His holdings have influenced you and me!!
Not satisfied with just published cases,
The Honorable Donald wears several other faces.
He lobbies, teaches, edits and regularly
Holds forth in the trial court on an OSC!
Who will replace him and ascend to his throne?
There are several pretenders, their skills they do hone.
There is Steve Adams, and as a Princess I try.
But as the King of family law, no one else will really ever vie.
So I join with the others wishing Donald King a retirement fine.
...Your respectful colleague, Sheila Prell Sonenshine.3
|
