Ay, Every Inch a King
Talking With Donald B. King
By Jennifer Jackson, JD (Family Law News, Vol. 19, No. 1)
It is emphatically the province and duty of the judicial department to say what the law is...It is the very essence of judicial duty. Marbury v. Madison, 1 Cranch, 1317 
Judge, advocate, mediator, administrator, politician, activist, writer, teacher, speaker, theoretician, mentor, husband, father, friend. A complicated and dedicated man, Justice Donald B. King has revolutionized family law and the way lawyers think and behave. There is no one more well-known, influential, knowledgeable, helpful, respected or well-liked in this field. Since this writing, Justice King has retired from the California Court of Appeal, First District, Division 5: a retirement, one suspects, which is thankfully more form than substance, since his idea of a vacation is to sit on a dock and read legal briefs. Here, in his own words, is a little bit more about Justice King: his life, his career so far, and his future:
The early years
The boy who would be King grew up in the West Portal District of San Francisco and attended West Portal Elementary, Aptos Junior High, and Lincoln High School. Thinking he would play football as a career, King went off to Alabama to Auburn University. After tearing ligaments in his ankle, "I spent some time in a cast and had second thoughts about the football." Instead, he played on the freshman basketball team and then transferred to University of San Francisco. "They asked me to play basketball but I didn’t do it because I was working my way through school and would have had to put in an additional year. So I didn’t play except for the Olympic Club against USF."
Having "never given a career in law any thought", he was drafted into the Army shortly after graduation from USF in 1952. University of San Francisco School of Law’s 1995 Alumnus of Year "was literally talked into law school by my two room mates at Officer’s Candidate School, who were both going back to law school." He took their advice and returned to University of San Francisco after the Korean War. "This was the first time I had ever enjoyed school. In those days, of course the classes at USF were very small: our daytime graduating class was 25 students. We were very closely knit and you didn’t see that cut throat attitude that people associate with law students. Everyone was very cooperative."
During law school, King took up basketball again, this time as assistant coach. After winning the national championship for two years in a row, USF was offered the chance to send a team to tour Central and South America, but could only send players whose eligibility had expired: "Me, for one. Bill Russell and Casey Jones came along too. So we played and beat every country’s Olympic team in Central and South America - except we didn’t go to Bolivia. We had a lot of fun but didn’t dare get out of shape, as we played 33 teams in 50 days including one in a bull ring in Bogota."
Don and his wife Nikki met on a blind date soon after his return from the basketball tour. They were married in June, 1957, and have a son Jordan, who recently received a masters degree in Buddhist studies with an eye toward a Ph.D. in religious studies. "This is what happens when you raise a child without religious training I suppose. He’s always said he wanted to do something to help people and we know he will. Needless to say, Nikki and I are very happy and very proud of him." Nikki, too, is a tireless politician and committed to the betterment of the community, having her own family therapy practice in San Francisco.
After graduation from law school in 1958, King opened up a law office on the same block he grew up on "with a fellow who had been one of the first lawyers to move out of the downtown area into a neighborhood civil practice." He maintained this neighborhood practice from 1959 until he took the superior court bench in 1976. " I did almost no family law. The last five years before going on the bench, most of my work was in engineering and construction litigation, together with a fairly sizeable probate practice."
The King Maker
From 1962 to 1966, King was the San Francisco county chairman for the Democratic Party. He was involved in many campaigns, whether non-partisan - such as a race for the board of supervisors - or partisan, such as a campaign for Congress, the legislature or the presidency: "I was always interested in helping good people get elected." He was involved in Stanley Mosk’s campaign for attorney general and Mosk " swore me in both times - as superior court judge and appellate court justice." King did everything from running a campaign to assuming a leadership role in a specific piece of it. "For example I organized the first citywide precinct organization in San Francisco for the 1964 Lyndon Johnson campaign. And of course I have known Leo McCarthy since law school. He ran the John F. Kennedy campaign in San Francisco, in which I became very active. We have been friends ever since, and I have been very involved in Leo’s campaigns and politics."
The Road to Family Law
King was nearly appointed to the bench by Ronald Reagan in 1971, "but the idea of a former county Democratic chair being nominated was so upsetting to the few conservatives there were at the time that they put forward their own candidate." King’s nomination made it to the governor’s desk, but it was pulled off "because of the uproar".
When Jerry Brown was elected, Don King was his first Superior Court appointment in San Francisco. King did a general civil assignment for most of the first year on the bench, generally jury trials "which I found very boring; the last trial I did was a seven week inverse condemnation case - every witness was an engineer." When the presiding judge called and asked if King would be willing to take a family law assignment "I was delighted. I really looked forward to it, and then liked it so much because as a family judge you are really engaged in the case before you; you’re not just sitting there waiting for some lawyer to object."
King spent six and a half years on the family law bench "The most important job you have as a judge is to help the people who come before you, and that’s why I stayed in family law so long. It’s the only place with the potential for having a positive effect on a person’s life and the life of a child," but he adds with characteristic candor " although of course there are some people who don’t want you to help." He must have helped someone, though as King has been repeatedly recognized for his achievements, not necessarily limited to his family law focus. He was named San Francisco Trial Lawyers Association "Trial Judge of the Year", was the first judge to receive the Bar Association of San Francisco special "Award of Merit", and was the California State Bar Family Law Section’s "Judicial Officer of the Year". He was given the "President’s Trophy" by the California Judges Association as the judge having accomplished the most on behalf of the California Judiciary, has been honored several times by the American Academy of Matrimonial Lawyers, and received the "St. Thomas More Award" from University of San Francisco for epitomizing the finest traditions of St. Thomas More, possibly the first non-Catholic recipient..
Innovations in the Superior Court
Arbitration: At the onset of the implementation of judicial arbitration, King was asked to be one of two representatives of California judges on a committee made up of the governor’s office, the bar and the bench to work on arbitration legislation. "We came up with a recommendation for non-binding arbitration for civil cases with the smaller amounts in controversy." When judicial arbitration got off the ground, King ran the program for two years in San Francisco. "It proved to be a good vehicle for getting smaller cases resolved - very few went to trial." King was then named by the president of California Judges Association to be chairman of a special committee to improve the court process but, rare for anything in which King is involved, "that committee wasn’t able to achieve very much."
Courtroom Procedure: King began to look into ways "to make the process less of an adversarial one" and to simplify things in his own courtroom. "When I took over, the domestic relations court was in very poor shape. It was wonderful for me, as there was nowhere to go but up." King then modestly adds that "actually, the timing was fortuitous as a lot of things were happening in family law: the Family Law Act had just passed in 1970, which eliminated fault, a raft of family law appellate court decisions were coming down, and the state bar instituted certification in family law. Before that, attorneys would take family law cases to pay the rent, but were not interested in the particular skills or expertise required, and for that matter, neither were judges."
Uniform Local Rules: When the presiding judge called together representatives from each of the Bay Area counties to come up with uniform local rules for family law, probate and law and motion, King chaired the family law committee. As it turns out, his committee was the only one that ended up with a product that got drafted, even though uniformity was short-lived and remains a pet project of King’s to this day.
Reifler Hearings: At the time King took the bench, the statewide practice was to have evidentiary hearings for an Order to Show Cause, "which was nuts: all calendars were increasing and it was becoming more and more of a problem to do things that way." King insisted on reading all pleadings in advance. To expedite his hearings, and because he was the only person in the courtroom who knew what additional information he needed to make his decisions, "I started to take over hearings and ask direct questions. I also tried to ask at least one question of each party so that they felt that the conversation was not just between me and their lawyers, even if it was an irrelevant question like: ‘How does your child like his school?’. People in this troubled point in their lives need to know that someone is thinking of them as individuals and not case numbers or statistics. The one beauty of judicial system is still that individuals can have their day in court."
Case Management: Just the same, his true purpose became to try to keep them out of court, so that "the essence of having their day in court is mostly just to know that it is always there." King is famed for his very strong conviction that " judicial intervention is at wrong end of case, at the end instead of the beginning." The system is out of control in his view " because no one is in charge: the lawyers can’t really be in charge because they have to actively and sometimes aggressively represent their clients - their clients demand it of them." The judge’s job, then, is to get clients to understand that a lawyer can represent them without fighting: "It’s the adversarial nature of things and the jumping through a lot of unnecessary hoops that add wasteful expense." The biggest costs are "parties and/or lawyers who want to fight, lawyers insisting on tedious technical tasks that really aren’t needed to get the case resolved, and an under-resourced judicial system that forces clients to wait two hours to get 10 minute hearing. Worse, there may be no room on the calendar for their trial, it gets kicked over, and everyone has to prepare all over again." King experimented with voluntary case management throughout his career in family law, wrote extensively on the subject, drafted the stipulation that is used all over the state for these purposes, and even while on the appellate court voluntarily returned to the superior court several days a week to manage family law cases.
Mandatory Custody Mediation: King instituted mandatory mediation in custody and visitation matters in his department immediately after taking the family law assignment. "What was happening was when there was a custody or visitation dispute, it was set for hearing on that morning, which was always traumatic." It was then sent over to the Domestic Relations Commissioners office for an evaluation by one of the counselors, and the parties were given - on the spot - a date to come back for a full scale hearing. "The first thing I did to change this was that I didn’t give them a date. Before I would consider anything, even on a temporary basis, I required the parents to go - that morning - to the counselors. It was clear to me even from a novice’s standpoint that the parents, with some help, were in a much better position to do what was appropriate for their children than I was. Incredibly, everyone just accepted this. Particularly the counselors, who were very dedicated and had been restricted to doing investigations and reports when what they really wanted to do was help people. Although it was harder work, they welcomed the opportunity the new system provided for them to have a very positive impact on families."
King again points out that the timing was good for requiring mediation, given the recent advent of no-fault divorce. "Before this all we did was chase down lousy things each parent said about the other. In a fault situation, the worse you could make the other side look the better you would come out of it. This was a crazy system." Even though " it took awhile for people to conceptually accept the shift in focus" by 1981, mediation had become so successful that the legislature mandated it statewide. King took his usual active role in the process, traveling to Sacramento to testify, speaking and writing extensively, and participating fully in instituting mediation as a mandatory step in custody litigation.
Mediation Education: Once the legislation was passed, counties were required to appoint mediators but "no one knew how to do it and there was no educational vehicle for it. Jeanne Ames [director of San Francisco Superior Court Family Court Services for many years and internationally known authority in the field] and I raised some money and put on the first conference of court mediators and lawyers in conjunction with the two day family law judges Center for Judicial Education and Research [CJER] institute, so that they overlapped." This was the first time lawyers, judges and mediators had ever met together officially, and "this has worked out very well. The first few years were difficult because the counties were kind of strapped and had a hard time sending their mediators. We set up a little scholarship program to help out. Now it’s an accomplished, ongoing program." King has expanded his leadership in this area, serving as President of the California Chapter of the International Association of Family and Conciliation Courts.
King and Ames then took mediation education "on the road", putting on four one-day programs around the state. They got others involved, such as the influential child psychologist and author Judith Wallerstein, and one or two local people in each location. "It was very much of an introductory program - there no guidelines at the time. Nobody knew what mediators did. Fresno and Los Angeles had developed similar programs, and we had core of people who were doing this who helped put on the programs. We did other things too. Judy and I spoke to judges at CJER institutes; we researched and wrote about mediation. We then realized that we had such a fountain of good information that it was nuts not to expose parents to this too. So Judy and I put together the video tape on mediation, which has been very effective and is still being played I understand. In fact, I was standing behind a woman in the Denver airport who said ‘I know I’ve seen you from somewhere’ and it turned out she had seen the tape!"
Education for Family Law Judges: After a few months on the family law assignment, King noticed that CJER, the educational arm for judges, was offering two day annual institutes for criminal, juvenile, and other specialty areas of the law, but nothing for family law. Going straight to the top, he called the Paul Li, the head of CJER, and demanded Why don’t you have one of these things for family law?
"And naturally Paul said Would you put one on? So we did." The first institute for family law for judges was held in Newport Beach "and was a tremendous success. At that time, Los Angeles was the only court with a separate family law department; the direct result of this first institute was to set up separate family law departments in all of the large counties. This also led indirectly to Mike Ballachey and Demetrius Agretelis setting up their direct assignment system in Alameda county: one case, one judge, which was a first in family law."
Education for Family Lawyers
King initiated a practice of using law students in his courtroom. "Seeing how much exposure my first law student enjoyed, and noticing that at the end of the semester she had more knowledge and experience about family law than many of attorneys coming into courtroom, I approached Golden Gate and then USF about developing a course that would enable students to have this kind of experience." For fifteen years, King taught hands on family law courses at each of these schools, adding a course at Hastings College of Law for the last five of those years. "Students told me they had to do more work for that course than any other course in law school. During the litigation course, I had them actually come into my courtroom and put on OSCs and trials and so forth. I was pleased that a lot of those students went on to become family lawyers primarily because of these courses."
King is also co-author of the Rutter Group California Practice Guide for Family Law, and has lectured extensively in family law for the Rutter Group, CEB, and other organizations, in addition to his commitment to educating family law judges.
Road to the Court of Appeal
By 1982, King had been filling in at the court of appeal sitting pro tem, and became interested in getting an appointment: "I really enjoyed the intellectual stimulation and variety." He remembers the political brouhaha: "A number of new positions throughout state had been created, and the Republicans were litigating to prevent them from being available until Jerry Brown was out of office." Luckily for family law, the litigation failed, and King was one of three people appointed to create Division 5.
He believes that one of the reasons he has probably had more family law opinions published than any prior appellate court judge was the huge backlog of cases assigned to the new Division 5 from two of the existing divisions: several hundred very old cases. "We just decided that the fastest way to become current would be to break them down by field of law. In that process I decided all of family law cases until the entire division became current. And of course I continued to have my fair share of them as time went on."
He points out that unlike most judges’ reluctance to take the family law bench itself, there is no such onerousness attached to family law at the appellate level. "Family law cases are treated just like any other case, and justices have no reluctance to do them. The problem is that they don’t always understand the finer points and ramifications of what they are doing, and there is no one with a background in family law at all except for Sheila Sonenshine and me. The other justices are concerned that they don’t create problems they did not foresee. So justices here and in other parts of the state will often call to discuss family law issues in cases they have."
Nature of Appellate Work
Division 5 hears a balance of civil and criminal cases. "For all practical purposes, we are the court of last resort. Each of the three of us probably issues 130 opinions a year. The courts of appeal dispose of eight to ten thousand cases year while the Supreme Court can decide only about 100."
King notes that "we have a lot of very routine cases, a lot that border on being frivolous appeals." However, confronted with such a wide range of cases from frivolous to cases of first impression, "the beauty of our job is that we are the only judicial level with adequate resources to do our work. We therefore have the wonderful luxury of deciding which cases will get most of our energies. So you are able to allocate your own time, subject to the 90 day rule, of course."
The answer to what has to be the question he is asked most is that "I don’t really have any favorite decision. I view them all as important to the people who were involved in case." King remains primarily a teacher, writing his decisions not just to decide the particular point raised in the case, but to "do something that doesn’t just get to the result, but gives some educational component to other members of the bar and some feel for the direction in which the direction law seems to be going.
His major role in court administration has been as chairman of court’s personnel committee which, inter alia, adopts policies for personnel procedures, conduct interviews for attorney and key administrative positions. The committee is unique, in that each division chooses its own representative and the committee itself chooses its chair.
Things are going to change. "Right now I don’t have any spare time except whatever I can carve out for my family, and that’s about it. Even when I’m on vacation Nikki will find me sitting on the dock reading briefs. My work load is going to be much different. Since I will be going back to doing more mediations and trial kinds of things, I anticipate more free weekends...and Nikki anticipates them even more! I’m retiring from the public bench and expect to be doing whatever private work people want me to do - I anticipate a lot of it will be in family law."
One of the things that is difficult to assess is "What my future role will be in terms of accomplishing change to improve the system. Some of the ability to do that flows from having this kind of a role [Justice of the Court of Appeal]. So once I have retired, it is difficult for me to anticipate what that new role will be. Certainly aside from doing private judging, I hope to have opportunities to make the system better. My primary goal is to make the system more user friendly. To make it simpler, less expensive and easier for the people who have to go through it."
King is most interested in Family Law 2000, which had its origin in his article for the state bar publication "California Lawyer." "Family Law 2000 requires the judicial council to take a close look at the family law process for the first time since the Family Law Act was passed, with an eye to defining the scope of case management and to setting up and authorizing procedures for it. I’m certainly in touch with people who are doing this, and they have a very difficult task: to accomplish change. But the fact is, we need change."
In any case, King reflects that when one is only weeks from retirement, "It’s very difficult to have any kind of a good reading on what the future is going to bring. I am going to have to wait for the future: as Yogi Berra once said "‘The future ain’t what it used to be.’!"