The Captains and the Kings Depart:1Talking 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.
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.
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?
Far reaching opinions on subjects from needs to hidden assets
Not satisfied with just published cases,
Who will replace him and ascend to his throne?
So I join with the others wishing Donald King a retirement fine.