The Contra Costa Legal Community –Yesterday, Today & Tomorrow
It was my first day of work at the Contra Costa District Attorney’s Office in October 1973. As I drove through the Caldecott tunnel on my way to Martinez, I would learn the entire legal community had been in a state of flux since 1953.
The first clue was my office on the fourth floor of the Taylor Courthouse was down a flight of stairs. In 1934, the Courthouse was three stories, and the jury deliberation room was on the top floor with a skylight for a ceiling.1
I was given a Penal Code that first day which was three-quarters of an inch thick. When I left the office in 1985, the Penal Code was three inches thick. In addition to changing from an indeterminate sentencing system to a determinative sentencing system in 1977 it seemed that many legislators in Sacramento sponsored various bills to be able to brand themselves as “Law & Order” legislators.
In 1973, the Superior Court Bench was composed of eleven “mature” men. (All were in their late forties, fifties and sixties). This was an increase from two judges in 1934. The Superior Court system with Justice Courts had changed little since its inception in 1880. There were a number of justices of the peace throughout the county. These men were not necessarily lawyers, but they held court and dispensed justice at the community level.
As a result of the post World War II boom in the Bay Area, in 1953 the first Municipal Court was established in Richmond, the center of the county’s legal community at the time. This was followed by four additional Municipal Courts in 19692. By 1972 all of the Justice Courts were eliminated by these Municipal Courts. In 1998, the Superior Court judges and the Municipal Court judges voted to consolidate the Municipal Courts into the Superior Court and Municipal Courts were replaced by limited jurisdiction Superior Courts.
Shortly after my arrival in 1973, the District Attorney’s Office opened a new branch office across from the Concord Municipal Court on Parkside Drive. This office relieved the over-crowding at the Martinez District Attorney’s office, but this Concord Office was closed after the Concord Municipal Court buildings were burned to the ground by a disgruntled litigant.
I learned after my arrival that “elections” had played a significant role in changing the public law community in our county. In 1958, John Nejedly won the election for District Attorney on a platform of “Full Time District Attorneys.” Up to that time, Deputy District Attorneys were allowed to maintain a private civil practice when they were not prosecuting crime. Nejedly eliminated this practice.
The County was also represented in civil matters by the District Attorney. In 1969, these attorneys were separated from the District Attorney’s Office to establish the County Counsel’s Office. Contra Costa became one of the last larger counties in the state to eliminate the joint civil and criminal functions in the District Attorney’s office.
About the same time the Public Defender’s Office was established. Gideon v. Wainwright (1963) had affirmed the right to legal representation in criminal matters. Before the Public Defender’s office opened, judges would randomly appoint attorneys to represent unrepresented defendants from any attorney present in the courtroom when the defendant requested one.
The other election which had a considerable impact on our legal community was Jerry Brown’s election as Governor in 1975. Governor Brown realized he could have a significant impact on the court system by appointing diverse and younger attorneys. In 1977, Patricia Herron became the first woman appointed to the Superior Court. Ellen James and Patricia McKinley were appointed to the Municipal Court when they were under the age of 40.
Subsequent governors have followed this practice and during the 85th anniversary of the CCCBA the Superior Court was composed of 17 men and 22 women. Today, we have a significant diversity of races and heritages on the bench.
The bench and bar when I started my D.A. position in 1973 was a very congenial group. It was common for judges, attorneys, court reporters, clerks and bailiffs to come together for large holiday gatherings. It was not unusual for trial opponents to visit Paul’s Restaurant in Martinez when the trial was over and have friendly talks. In the same vein, misdemeanor pretrials were discussed by the Deputy DA and PD at Harrington’s in Walnut Creek. If you had court in Pittsburg, Judge Rose would invite the attorneys involved in a concluded case or calendar to join him for lunch at one of his many favorite “five-star restaurants.” In all honesty, this practice put our opponents on a human level, and we could trust each other even though we were advocates.
The court process has also experienced major changes. We had always used a master calendar system where the Presiding Judge would call the trial calendar for criminal and civil matters on Monday morning. Criminal cases were assigned first, and civil cases would trail and go out if departments were available. All law and motion matters were assigned to one judge, Martin Rothenberg3, and when he retired, two judges heard them. By the mid-1980’s, there was a civil case backlog. Civil attorneys began working on ways to reduce their numbers. Attorneys volunteered their time to evaluate pending cases and determine which were still active. They set up bench bar settlement conferences which resulted in a very high percentage of settlements, but there was still a backlog.
As a result, the state Judicial Council felt more drastic measures were warranted to reduce the backlog and provide access to justice. Contra Costa County became one of a few counties in California selected to create a Civil Fast Track program. The guidelines called for a system in which over 90% of cases were resolved within one year of the initial filing. All of the cases were to be resolved in two years of filing. Four judges4 were assigned to this program handling all civil cases except family law and probate. Each judge was assigned 25% of all new cases and also handled his/her law and motion matters and trial calendar. Much to our amazement, after a few years, the Fast Track judges were complying with the guidelines. The system involved constant monitoring by the judges using “Case Management Conferences.” Attorneys had to serve their complaints, perform discovery, and pursue defaults if defendants failed to answer. The system worked because the judges took control of their cases from filing until judgment.
The remaining problem was with the backlog of cases on file before Fast Track began. With the assistance of Judge James Marchiano (Ret.), several methods of Alternative Dispute Resolution (ADR) were created with their own acronyms such as EASE, TOT, SCAN, SMART and JOLT5. The most inventive was TOT (Trials on Time). Counsel would agree to try their case before an experienced attorney if all counsel agreed. Ultimately, the backlog was resolved.
Court security came to the fore with two fatal shootings at the courthouse involving two family law matters, arson at several courthouses and other unsettling situations.6 Although there was reluctance to put up screening stations, we all acknowledged that in a turbulent, unpredictable society, it was the minimum the court could do to ensure safety at the courthouse. In the last few years of the century, screening check points became part of our lives in each of the courthouses.7
Associate Justice Benjamin Cardozo observed “History, in illuminating the past illuminates the present, and in illuminating the present, illuminates the future.” When I began work in Contra Costa in 1973, the courts, the systems and the people were everything I had envisioned about a legal community. In a short time, the courts dramatically changed their appearance, structure, function and process. The current system with computers, email, electronic filing, and Zoom court appearances requires a “21st century person” to feel comfortable. However, when I think of my first office downstairs in the four-story building that used to be a three-story building, I realized that things in the present were based upon the past. Things in the present, the good and bad, were going to dictate the future. As we celebrate the Bar Association’s 90th anniversary we can visualize more efficient processes, broadened access (actual and virtual), more forgiving electronic filing, and a system sensitive to the humanity of our work. Hopefully, our association will play a significant role in making this happen. Justice Cardozo will be watching.
1 It was customary practice for attorneys to go up to the roof and listen to their deliberating jury through the skylight.
2 These new courts were Concord, San Pablo, Walnut Creek, and River
3 Judge Rothenberg, Department 7, was so revered and feared that civil attorneys created a prayer, to wit, “Our father, who art in seven, Rothenberg be his name. Thy kingdom come, thy will be done, on Earth as it is in seven!”
4 Judges Phelan, Patsy, James & Flier
5Acronyms defined: EASE – Extra Assistance to Settle Early; SCAN – Summary Case Assessment by Neutrals; TOT – Trials On Time; SMART – Special Mediator Activity Resolving Trials; JOLT – Judges On Long Trials.
6 Both shootings involved Family Law litigants. Another case involved a defendant who hid a revolver in his jacket. An alert bailiff found it during a pat search. Another case involved rival gangs whose members were involved in a criminal prosecution.
7 The partial burning of the Clerk’s Office in the Taylor Building lead to other developments.(1). Files were partially burned around the edges, (2). During repair and construction judges and court rooms were moved to Hilson’s Department Store, Veterans’ Building and Child Support Building. (3). During the cleaning of the second floor foyer, over half century of dust and dirt was removed to reveal beautiful decorations and base reliefs. (4). Some resources were used to help finance the new Family Law Building.