The Coastal Post - June, 1998

Marin As I See It

On Judges And Judging

By Sanford I. Gossman

My submission for the April issue, intended to be published in time to affect your vote for judges of the Marin County Courts, was mostly about why you should not have voted for Judge William T. McGivern, the "new kid on the block." But, because of space limitations, the column was omitted.

By the time you read this the election will be over. (Oh, how I hope that the usual two-thirds of the small portion of the masses who vote did not elect yet another Republican appointee incumbent just because he is an incumbent.)

Because timeliness has forced me to rewrite the column, I'm going to address the general issue of judges and judging in the hope that my observations and conclusions will guide you the next time it is your turn at bat.

Has it occurred to you that the most powerful people in the county are its judges? It's a function of the political pecking order and the process of judicial review. True, the rich and the Supervisors get their way without special effort but when something "really-big" happens or someone gets really pissed, they sue. And when they do, it is almost always a judge (sans jury) who determines the outcome. The building of the current Marin County Jail is an excellent example of that reality. So, why do so many of the current Marin judges exemplify the working definition of a judge as someone who was once friendly with a governor (or whose family or business gave a lot of money to the party with which the then-current governor is affiliated)? Why do we allow that someone can be taken from their law practice (whether it be for the government or the private sector), be sworn, and be put to work on the bench the same or next day, to learn as they go, at our expense (both financially and politically)?

I think that candidates for judgeships should meet at least the minimum requirements we demand for elementary school teachers. By this I mean that a candidate for a judgeship should first have to pass a test to demonstrate knowledge of the law. Then receive a comprehensive psychological evaluation. If passed, then it is off to "judge school" (there really is such a thing, usually attended for the first time MANY MONTHS AFTER being sworn-in) and, if they pass there, they should enter a period of closely-supervised student judging where their overall judicial performance is accessed, and then be subjected to a comprehensive review by a committee of sitting judges. Only if a candidate passes muster in all areas, only then are they rewarded by being given the status of an autonomous jurist.

Why is all this careful selection important? What I had to say last month about McGivern tells it all: In February, after three months on the bench, McGivern, who has little experience practicing civil law (another 20-plus-year veteran of being a federal prosecutor) was assigned to hear a Small Claims action I filed. But first he heard routine motions in civil cases assigned to him. A competent judge does the job in 90 minutes or less. It took McGivern FOUR HOURS! Is it because he is thorough? No, it is because he is DENSE! I watched in disbelief as various attorneys explained to him why they were there. It often took two, three, four, even FIVE times until McGivern finally STARTED to "get it." Everyone around me in the gallery "got it" way before McGivern did. Then it was time for my very simple case. I expected it would require under ten minutes.

I sued an insurance company for breach of contract. It insures a driver who injured me and my vehicle. A month later, by letter, its adjuster told me that for the seven days during which my vehicle was being repaired I would be provided with a rental car. But it didn't happen as promised. So I sued them for the value of the car rental: $251.30. McGivern spent ninety minutes hearing the case. Much time was repeating things to him. He asked questions about the details of my injuries, the medical treatment I had received, and the cost of it. I had to remind him that none of those things were, at the time, relevant. I explained that it was me, the plaintiff, who decided what was before the court, not him, and I demanded that he limit himself to the single issue addressed in the Small Claims complaint or I was going to dismiss the case on the spot. Totally ignoring the basic concepts of contract law, McGivern ruled against me, stating that his ruling was based on the fact that the insurance policy for the other driver did not specifically require that a rental car be provided to a claimant. This even though the insurance adjuster who promised me the car told McGivern that the arrangement was the standard practice in the auto-insurance industry.

With such stellar performance I was dismayed that McGivern was assigned to the Horace Kelly sanity trial, the high-profile case that was being reported worldwide. On April 15th I attended the trial for the first time. Because I am hearing-impaired, I arranged for an assistive listening device to be brought to the courtroom. The paperwork allows me to specify where I want the microphone placed (on the bench next to the witness stand), because the law holds that the disabled person determines the details of the accommodation of their disability. I had a copy made and gave it to McGivern. But he refused to place the microphone where I had indicated it must be placed to be effective. This violated my civil rights pursuant to the Americans With Disabilities Act of 1990, which is a federal offense. I protested. He told me to shut up. Then he asked if he was going to hear anything more from me. I told him "Only if you continue to violate my civil rights." He immediately had me ejected from the courtroom.

On the first hot day during the Kelly trial, I attempted to be comfortable in the stuffy courtroom by wearing shorts. McGivern excluded me from the courtroom, citing the "dress code" portion of the local rules, that CLEARLY applies ONLY to persons APPEARING in court (not observing). It says you have to wear long pants or a skirt. That day I changed into pants I had in my car. Then I wrote McGivern a nasty letter in which I explained the law and told him that on hot days I was going to wear a skirt, and if he excluded me from the courtroom I was going to sue him in federal court for gender discrimination. (The day I had the letter delivered to him, I asked McGivern in the cafeteria if he had gotten it. He said that I "wasn't allowed" to talk to him. Imagine that! A public servant who says you're ALLOWED to talk to him. I have been talking to judges in the cafeteria for years. Are they all breaking the law by talking to me?)

On the next hot day, and every one thereafter, I wore a skirt, with shorts underneath. It was normally neatly pushed-up around my waist. Before entering the courtroom I would pull it down, take my seat, and then pull it up to the level of my shorts. Hopefully McGivern realized the stupidity of his thinking.

McGivern told the Kelly jury that trial would take five court days. It took seventeen. Much of the delay was caused by McGivern because he is SO s-l-o-w "getting it." Many observers and reporters expressed their views about him to me with words like "dense," "dumb," "Bozo," "in over his head," "out of his league,"... you get the point. Once he gave permission to a defense attorney to leave the courtroom to bring-in the next witness. The attorney returned, with the witness, and the witness went directly to the seat on the witness stand. About two minutes later, McGivern wanted to know what was delaying the witness. The defense attorney told him that the witness was in the courtroom. McGivern asked where. The attorney told him "sitting next to you." Some people laughed. I almost cried.

Judges are supposed to be knowledgeable about the law, be attentive, reasonably efficient, conduct their judicial business according to the law, insure that the rights of people in the courtroom are not violated, and be polite to ALL persons who address the court. It is clear that Judge McGivern either doesn't know about these things or that he simply doesn't care. This clearly demonstrates the danger of the appointment-then-run-for-election system in our state.

So, in the future, don't vote for an incumbent just because you recognize the name, can't recall any horrible controversy that involved the judge, and think that experience is always better than having none. Instead, take the time to research the candidates and vote for the one who is most QUALIFIED.

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