Home Trends Justice Robert M. Mallano, Second District Court of Appeals

Justice Robert M. Mallano, Second District Court of Appeals

by smart

i’m uh roger borin and i’m here on this day with the justice presiding justice robert milano and we’re doing a an oral history legacy recording on this day which is a day in may and night in 2021 and because of the current and still continuing pandemic conditions here in california and elsewhere we’re doing this remotely and so uh the recording uh persons and the uh justice milano and i are all in separate locations and we’re doing this by electronic means uh justice milano uh it’s you and i have known each other for about 20 years or so personally known each other perhaps a little longer than that uh historically and uh it’s an honor to be here with you today and to attempt this uh interview in a way that will capture your legal and judicial history can we start with your youth perhaps and go ahead and tell us about that well i grew up in los angeles about 15 miles from where i sit right now in southwest los angeles i went to uh a boys high school mount carmel high school and uh then i went east to college well let let’s go back on a little on that and take it in steps what was your life like as a young boy in southern california in those years that must have been the time of world war ii and maybe some of that after what sticks in your mind about the conditions or events and your feelings about the 1940s the first thing that sticks in my mind is from my first recollections when i was three years old my father was afraid of a japanese invasion 1941 following pearl harbor and shipped my mother and brother and i off to chicago for six months far away from the west coast so that was the first thing and i can remember being terrified coming home six months later because we were going through the great salt lake on the train and all the way around and looked i all i could see is water i guess the train tracks could have cut across part of the salt lake but anyway i got home when i was three years old went to grammar school when the war was going on they were selling war bonds meat was rationed a lot of stuff was rationed shoes were rations carburation when the local uh market across the street from my grandma school got bubble gum once a month that was a big deal would go online and get bubblegum so and i remember the war ending and uh uh yeah it was it was a happy childhood i lived in what did you do for fun on a daily basis when you’re a young man what was that i’m sorry what did you do for fun as a young boy well what did we do you know we played bikes we played football on the street baseball on the street baseball on a empty lots went up to the local school and played and what i looked we used to i started a bug club we catch bugs i love to catch up you know how to catch a trapdoor spider you open the trap and pour water down and then you twist the top and pull it out anyway so it was a normal school sports bugs and some of the uh playmates that you had there in as a young boy did they some of those become your classmates when you’re in high school at mike carmel my closest friend was uh bruce and he moved away broke my heart when he was seven and i was in love with the girl next door when i was five jeannie and she moved away and uh none of my immediate neighbors went to my caramel i wanted i mean some in the where i went to grab a lot of them where i went to grammar school went to mount carmel but uh not in my immediate neighborhood have you changed go ahead used to hitchhike going to school until i got a ticket for hitchhiking my mother my mother had to go down to the see the juvenile officer with me and he said don’t let him hitchhike it’s not safe there’s bad people out there so then she gave me bus money and i got to take the bus which was better because i wasn’t late for first period as often was when i was hitchhiking tell me about uh mount carmel high school has that been a a relationship that has extended through your life well my brother went to a public high school so i went to mount carmel with some of my colleagues and it was an all-boys uh catholic school carmelite school and uh if you want to be anything you’re rather on the football team or the basketball team and that’s just the way it was and i was on the football team and we had great basketball teams they won the league often and we won our league finally in football our senior year but that was basically what high school was about also high school dances the priest made you go to the high school dances and the nuns from the neighboring catholic school made the girls go there because they wanted catholic boys and catholic girls to marry in their faith so i met my wife at a freshman dance my wife of high school 57 years i met her at a freshman dance at my high school wow well with that you ended up getting your bachelor’s degree from yale university in 1960. what led you to the other side of the united states the yale well the the football coach at yale the back coach called my my coach and want to know if any anybody on any of the players on his team had the grades to get in the yale and my high school coach said yeah name me so i uh coach came by my house and said told me about yale and told me he was italian i’m italian ancestry he told me about 40 of new haven connecticut where yale is italian and gave me that pitch and and so i applied and i got in i got a scholarship an academic scholar called the financial aid scholarship they did not give athletic scholarships in the ivory league to this day and they didn’t live so it was a financial aid scholarship so that’s that’s how i ended up back there and then you played intercollegiate football at yale then i did yes any highlights from that period well today i haven’t forgotten i haven’t forgotten this day i can i can live it over my mind like it happened yesterday i was we’re on our own 45-yard line i intercepted a pass and ran it back 55 yards for a touchdown i was a lion it was a guard then but so that was kind of unique so that was kind of the highlight of my football career i have to have shifts did you win the game no that that my touch don’t put us ahead touchdown put us ahead but they came back and won you remember what who you’re playing brown brown brown is that in rhode island i think it is yes it is providence rhode island yes okay uh any other highlights to stand out from the other university what did i guess i should ask you what did you major in history it was a big cultural shock going back there you know i heard people talk about the change of seasons and everything and you know there’s no change of season in los angeles you know everything’s the same so i went back later and we were sophomores flying to upstate new york to to ithaca to play cornell and i’m on this bus we got off the airplane i’m on this bus going to ithaca but i’m looking at these trees and they’re red they’re orange they’re yellow my first thought was who painted those trees i mean i never seen that so then i figured out no nobody could paint the trees that’s just the way they were and it was the most magnificent sign i’ve seen in my life i was 19 years old at the time and i never had any idea of the beauty of those uh the fall colors so it was a big cultural shock going from la back to yale with all the prep guys and dressing very preppy i dressed like we dressed in high school in l.a which is pig pants and you know gaucho shirts and so it took me a little while to get a climate ties to the new england uh culture but by the time i was a sophomore i was wearing button-down shirts and khaki pants with the buckle in the back and penny loafers and sweat socks have you still maintained some connections to your classmates or the to the school yeah a couple of guys i see my best best friend from there died five years ago and but uh there’s a couple guys like i keep in touch with but i tried to make all the reunions the last our sixth reunion got called off so well you graduated from law school in at the university of california berkeley bolt hall in 1963 when did you first contemplate pursuing a legal career when i was in high school watching perry mason i was intrigued by jerry mason and i said i want to be a lawyer just like terry mason so i had that in my mind i went through high school and at yale that’s that was my goal to be a lawyer okay so you had that by the time you got to law school it was not a short time uh target it was a one you had in mind at an earlier time yep did had you any thoughts while attending uh bolt hall that you might someday have a judicial career as well well i always looked up to judges i i thought you know i thought it was uh a honorable profession and and some some a career that i thought would be terrific but i really didn’t have that in mind when i was in law school because i thought that the process i understand is you got a judicial appointment from a governor someday after you practice law for a while so i i that wasn’t on the radar for me when i was at bolt hall as you were growing up in southern california had you known personally any judges there was one classmate whose father became a judge but that was when i was in high school and i had never met him so i mean i never oh wait a minute let me back up maybe back up when i was in high school they had something they called boys day where a boy if you will got to take over a role of somebody okay in government or whatever a friend of mine he got to be a police lieutenant and i thought oh a lucky him you know he gets to ride around a cop car they the slip i i they wrote down for me was presiding justice of the criminal courts well i like you yeah i can’t go to the mayor’s desk and get my picture taken you know so i just don’t know what’s going to happen so i go down to department 100 which is the master calendar for the county and i go up to the clerk and say i’m bought by state blah blah so the judge that’s the biggest that’s the biggest courtroom in l.a isn’t it but the judge was herman v walker he puts a a chair next to him on the bench and says sit up here with me listen to him and he’s arraigning some big oh big criminal case ewing j scott who was charged with murdering his wife and they theorized that she’s under the hollywood freeway someplace under tons of cement and uh watching him and he’s chewing out this lawyer he leans over to me and says he’s a new public defender i’d chew him out because it’s it’s good for him they got to learn so anyway he says well i’m sorry i can’t take you to lunch because i have a commitment but i’ve arranged for another judge louis burke to take you to lunch and louis burke at that time was on the superior court and he went on to be on the california supreme court very respected very well-known guy so i talked to him about but at lunch time i said that case looks real exciting you’re trying it was some automobile case he said nah it’s really boring so i learned a couple lessons from that but anyway that that was those are my two experiences with judges and they were both real positive and you know they’re both very very nice gentlemen they treated me very nice and i appreciated it well your first few years as an attorney who was not with a criminal law firm that was with paul hastings won that can i back up just a little bit because you’re you’re not here of italy okay when when i bolt all i forgot about that yes i needed that about that volatile had a ford grant that promoted international legal studies and they gave scholarships out or they call them fellowships and i wanted one just because i wanted to travel and uh go study someplace so i want to talk to a professor who i really liked about it and i said well maybe i’ll go to venezuela or something i said what what i just threw this out just to say something as an introduction what i really like to do is go to roman study kind of law he says what canon law that’s law of and the internal laws of a church okay he says well why don’t you do that he said did you know that a rich anglican died and left a lot of money for a canon law collection and bolthall has one of the best cantaloupe collections the united states and you’re the only person that showed any interest in it wow cool i applied for that it’s a steady cantaloupe in rome and through a classmate of mine put me in touch with the dominican who arranged for me to be tutored at the dominican university of rome in canton law and also uh the school put me in touch with the head of international uh comparative law at university rome so i was in a seminar at the university of rome in rome and then i was going to angelicum which is right across the street from the forum and i did that for a year now in the meantime i graduated got married took the bar so i was over there with my wife and we had a baby over there as a matter of fact our first child was born in rome he wasn’t born in the united states when i was over there i got an offer from a law firm which who i’d interviewed and then i i when i got back i went to work for them they were a big uh then that was the fourteenth lawyer it’s paul hayes and janowski and walker now they probably have over a thousand lawyers but i was a fourth year overhead and then they were just in l.a they’re multinational so i i did that where was it where was your office yeah downtown l.a on spring street maybe uh began your legal career on spring street and ended your judicial career on spring street that’s right it was two blocks down from the uh you know the ronald reagan building where you and i sat but anyway yeah i did that and i was scheduled to be a corporate lawyer which really was dreadfully boring for me so i i told my father-in-law boy if i could do anything i’d want to quit go in the da’s office he says why don’t you i gotta take a pay cut uh so anyway i took a pay cut from ten thousand to seven thousand and joined the da’s office because i really want to do courtroom work and the idea of criminal appeal to me and going back to the watching perry mason so so i did that and it was in the days i was three and a half years and after three and a half years i tried all i don’t know how many jury trials and i decided to advance in the day is amish you become kind of a you don’t try case anymore you become a civil service administrator filing out forms and i didn’t want to be a civil service administrator so i went into private practice on my own and i was in private practice for nine years before i was appointed to the bench by jerry brown in 1978. let me ask you a little bit is there you know your your chance to do criminal law there in the da’s office as a prosecutor rather than as a prairie nation defense lawyer is there anything that stands out in your mind about that part of your career and anything right i enjoyed being a prosecutor very much i love this pre-decor of our office made some good friends there and i enjoyed doing criminal law as well and i did criminal on family law and uh that’s how i made a living i started with a small firm and they didn’t want to do divorce anymore they didn’t do any criminal law but i took over the criminal law practice and then i was with them for seven years then i went out my own doing the same thing for a couple years but it was a it was a you know it was a enjoyable time i enjoyed the practice of law well when when you were serving in the da’s office did you serve downtown or did you get to work in one of the regional offices out where you grew up well i i ended up working myself back to torrance which is about five miles from my house before that i was on the county run which meant i had well first i was in doing prelims in the ohio justice downtown then that was on the county run they sent you all over the county then we had to be in child support and the o’halla records which they tore down for four months and then i wangled my way back to torrance close to home where i spent the last uh two and a half years and then when i went to private practice it was about a mile away from the torrance courthouse so you got to stay in your own home yard although i knew the lawyers it was fun to practice in the smaller community you know the lawyers and people were more respectful to each other then and not uh not the kind of nastiness i’ve seen to happen later on when you got to see the guy for the woman all the time you know there you tend to be more civil you your practice there and both with the partnership and then when you were in solo practice consisted of kind of a general practice of both criminal and civil kind of cases well pretty much all all criminal law and family law okay that was one okay family law okay pardon me go go ahead i’m sorry go ahead finish the bench i had about 50 open family law case cases wow that’s about a third of my practice okay that’s uh that’s those are kind of disagreeable situations a lot of times were they for you i missed the question roger well those often are very you know they’re people that are uh not happy about life when they come to you they’re it’s very stressful to go through a divorce i urged every client i had to get go to a marriage counselor they’d say well i can’t fix the marriage i said well go to a counselor that can can understand help you understand what you’re going through and how stressful this is for you and how stressful it is for your children and and it’s just good for your mental health you know so i tried to you know i i i said i’m not a trained marriage counselor but you know these these are these are tough things you’re going through so i tried to understand their predicament and you know some some clients are really really unhappy about life and it’s understandable but you know i tried to be as kind and as empathetic as i could be what steered you into becoming a trial judge well every young lawyer goes to court and sees the judge up there and says well i could do that i could do that as well or better than he him or her thank you you’re more in charge of your own destiny too well that then you you know so that that that but going about it is getting into something else you know well how did you go about it well you know i i took pat brown’s uh judicial appointment secretary out to lunch he had offered me a job when i was at bolt hall he went to bolton and then i said well how did how did how did it what appealed to you in becoming a when you were rating these people and and you know advising pat brown or something he told me how pat brown did it so i tried to do that and of course jerry brown had his own ideas so doing it the pat brown way uh didn’t make didn’t do it okay it did not do it so uh jerry brown had his own thoughts about who should become a judge so the minority bars were very very active uh and so i was one of the original members of the italian american lawyers of los angeles which were organized so for the sole purpose of lobbying for judicial appointments and judge mario klinko mario klinko was very outspoken about it and would talk to jerry brown and when are you going to point some italians we’re going to point some italians look at this guy look at this guy’s resume and jerry brown went to cal undergraduate yale law school i was reversed and you know so look at this guy so i was appointed the day before the italian american lawyers had a dinner for brown maybe 300 people there at the italian cultural center downtown the appointment secretary when he called me and said it’s just a coincidence that you’re getting a point of the day before that uh brown’s gonna be down there i said well i’m sure that okay you know whatever you say basically so that’s how i got the appointment and a recommendation of the superior court judge uh unicorn judge george perkovich who got elevated and and he recommended me for his spot on the south bay municipal court in torrance so those two things did it for me and you again we’re got to go to work in your own background area that’s right i’m in the i’m in the building where i was in the da’s office where i did most of my divorce work and a lot of my criminal work so it was just five miles from my house and it was it was great well you must have got yourself uh into jerry brown’s mind because you’re only there for two years right well yeah it’s kind of like the pride of authorship i guess because the the legislature gave la 25 new judges okay so they’re all these vacancies so i contact the apartment secretary you know tony klein who’s our colleague up in san francisco and and said could i be considered he says yes so i i got one of the 25. okay well then you went to the superior court and did where did you practice uh being a judge they sent me first to compton which was about not too far from my house about a 35 minute ride i was there for two years then i went to long beach which was about the same drive and then i worked my way back to torrance where i really wanted to be because that was my home turf and then uh a judge bob wenke who was he’s no longer with us god bless bob i sat with him in long beach and he kept nagging me to go downtown and run for presiding judge and he says i think you should be pr you can be presiding judge and it’s by election of course so i said well i want to go back to torrance first and maybe become supervising judge there and then get a little gray in my hair so i was out in torrance for uh five years or so and then i went downtown in a civil courthouse with the idea of uh in a couple of years running for a presiding judge was there anything that prompted you to run for president besides bob lanky or somebody like that uh just urging that you’d make a good candidate well i was i was interested in court administration it’s just you know in the back of my mind growing up i wanted to go into politics okay i remember but i remember the priest saying he was from chicago you you go into politics you lose your soul you know and for a while before i became a judge i thought of running for the assembly and this and that and then it’s such a dreadful life on the family from what i understood and then so but the idea of being presiding judge or the spokesperson for the court you interact with the board of supervisors and legislature is kind of a gives me some of the political activity that i kind of thought i’d enjoy and so you you did run presiding judge and became one in 1993 to 94 right that’s right were there certain challenges that faced the presiding judge the los angeles superior court well they kind of particular time well being just in general being presiding judge is like herding cats as they say they’re all state constitutional officers so you really can’t tell them to do anything you just try to appeal to their better nature and most of them have a better nature and uh well the one thing that was going on when i was presiding judge was the o.j simpson case and that was getting a whole lot of court attention you know so uh you do you remember one of the things that happened there about the uh where the place that trial would be conducted oh yeah well this is a yeah garcetti he was the d.a deputy district garcetti the father of the mayor of los angeles now uh got blamed for the case being tried downtown and not trying it as a preliminary hearing in santa monica and then the supreme court in santa monica well i’m the presiding judge basically the santa monica was an unsafe courthouse ruined in the by the big earthquake people had escaped by breaking through the walls not a setup for security they had to bring the defendants down the hallway and the supervising judge outside says that this isn’t the place to to try to try oj for safety reasons okay so the court not garcia the court decided to try it downtown and it got tried downtown now typically what happened in the past was all the big murder cases were tried downtown because that go to the grand jury any indictment returned by the grand jury is done in the department 100 downtown so there wasn’t anything unusual about a big case but uh garcia got blamed for the for it being tried downtown and uh and i i’ve seen books written that says it’s his fault he chose to write a downtown i had a reporter call me once and ask me about it and i said it wasn’t his decision it was a course decision and the reporter did not report that you know did not clear up because i get it it seems like he wanted to blame garcetti and he couldn’t blame garcia so he didn’t say anything about it well were there any other situations as i recall there was something about the time that you became presiding judge uh that the the integrity of the judge situation in downtown was being challenged by local newspapers and things like that because of things i don’t remember exactly what it was about do you remember that the integrity yeah no i don’t well there was one thing one thing there was an op-ed piece in the la times that says los angeles superior court an apartheid court written by a criminal lawyer and it basically said it was apartheid court because uh governor wilson had appointed 21 supreme court judgmentally county and none of them wasn’t was an african-american so i took it upon myself to say in speeches including one where the supreme court was the other county party judge’s deal saying that the court ought to be culturally diverse you want people to buy into the court system they can’t be looking up but just all white faces you know but then i got a call from somebody on the governor’s secret committee that said well who do you want me to who who who do you want the governor to appoint i said i don’t have anybody mine i just thought that you know out of 21 he had a pick an african-american there was about eight or ten percent of the population and there’s qualifi good quality says well give us a name you know so okay so now it became upon me so i i went through all the commissioners on our court and one of them was a standout he was a mathematics major at ucla and very highly expected and highly regarded and i said this guy so and the guy i’m talking oh yeah he’s a good i appeared in front of him he’s a good guy so i called him up and said i want you to apply yeah you know he didn’t think he had a chance i said would you please apply he applied and he got appointed so i feel good about that because he was a good he was a good commissioner and he turned out to be a very fine superior court judge so that was a contentious thing now amongst the judges there were two other things that were very very contentious one of them was the uh merger of the supreme court municipal court and the other one was stated a little yeah that was the well when i was presiding judge they asked the the superior court exec committee wanted a vote to see who was in favor of it who was against it okay so that was on my watch and it was a 160 something against it 33 for it i was 133 for it so senator locker who was the head of the senate was pushing for it so i figured to do the right thing i should hand deliver the letter okay rather than send it this so i went up to his office and said here’s the vote just to give it to him kind of i thought i thought that was the right thing to do anyway so it eventually got forced on the superior court after i was president judge it didn’t it happened maybe five years after i was president they finally unified and then the other thing was state court funding which happened while i was on the judicial council with you after i was president but that that was a very contentious issue a little bit towards the court of appeal the second appellate districts are in here in los angeles uh i believe mildred lilly was the administrative presiding justice and i was wondering if you might tell us a little bit about your experiences with her as you were presiding justice judge of this uh la superior court because i i know that you had to have some exchanges there to have cooperation well she would call up and say first time i need somebody on the court appeal are you gonna give me a bad time i said no no who do you go who do you want well i don’t give me some okay so i i cooperated with her unlike when i was on the when i was on the court of appeal i had we had two vacancies in the ford justice department and the uh and the la superior court presiding judge says no we can’t give you anybody yes i remember that well orange county so anyway so mildred whatever you know i’m but uh i love mildred you know i loved her as you recall i had her speak for me when i was uh my first confirmation hearing and uh she was one time she came in with a black eye and i said would you fall off a bar stool and she said don’t i wouldn’t i don’t know she bumped her eye at home or something but anyway she was a she was something else i mean she told me this story i loved the story congratulations story of the week one story always had a new story of the week but tell us the story well she said she went to earl warren but she graduated from bolt back in late 30s and she won a job as a he was the d.a of alameda county and he says she interviewed for a job he said now we hired a woman once and didn’t work out okay so later on the irony is when she was the first she was the first woman appointed to the municipal court in the state uh earl warren swore in so she got here she got her uh i don’t want to say her she got the last laugh in there anyway mildred was a lovely woman i i i love mildred she used to embellish that story a little i mean not embellish to amplify that story by saying that later in life she went back to probably an aba convention back east and took the time to get herself admitted to the bar of this u.s supreme court in earl warren gave her kind of a special applause you might say in introducing her at the in the courtroom she was very proud of that yes didn’t you and she sort of established a policy that was followed thereafter about because i think before you were presiding justice the court of appeal used to just work through the judicial council of the chief justice and they could they were calling up people from the court of superior court and without even interfacing the the leaders of the court the supreme court i i didn’t even really sort of iron that out you know i don’t recall that roger but i just remember she asking me and i said i’m happy you need anybody let me know i always thought it wasn’t i think she told me that but she had that arrangement okay and i think that came about because of your ability to converse with her and to work out an amicable amicable way of doing things that made more sense rather because they when i thought was called up as a pro tem justice they were still doing that i mean the supervising judge was even while you’re going there on the court of the field pro tem you know that it changed the workload well my way of getting along with amicably is just doing whatever she asked for that was always a good thing with mildred which is always reasonable so i didn’t have any problem with that yeah well don’t don’t leave off me about my being the man that came to dinner and you’re in your division you invited me that’s where i was going next but i was going to mention that it was about this time that you were still presiding judge that you started serving on the california judicial council is that correct right yeah that’s when we served together who was the chief justice when you first went on the california judicial council it was malcolm lucas right and then i think while you were still there ron george became the chief justice of california i sat next to him at a lot of the a lot of judicial council meetings so he was on the yeah he hadn’t been appointed to the uh as chief justice i think until i think i was off the judicial college it was a three-year term yeah okay i think i stayed on while he still was the chief justice do you remember the thing about the just the budget woes that we had about that time in the california judiciary well the con the contentious issue do you mean about the budget business now we had a problem with the legislature that the judiciary did well the legislature decided that ought to be a trial court budget commission to allocate the funds and and somehow i ended up being the this is for all the state somehow i ended me the chairperson of the of the uh state court budget commission that was established by the legislature and all the courts that get together and want their piece of the budget and we were supposed to distribute it and uh we were trying to all the courts had different budgets different accounting systems so the first thing we had to do is to get everybody reporting in the same way and using the same you know budgetary structure and that that was a big problem just to get that done and then we ended up allocating the funds pretty much as they were historically so that was a lot of work and uh and and i’m not sure what what we achieved although i think it was a healthy thing because we could get together and discuss our needs and and figure out a framework to uh voice them to the rest of the judicial council and the legislature would you know be apprised of our situation right around that same time they were there that was part of that push for by the legislature for unification and a lot of other things and so the budget thing was kind of picked up towards that yes it was yes it was that’s right unification state funding there were big sea changes in the country and there’s been also a kind of bulk uh created between the judiciary and the legislature because of some things that happened with uh i think it might have been term limits or something as i recall what happened when go ahead what happened between the legislation the courts was the ruling on the the the uh limits judicial uh legislative term limits right the opinion in the in that opinion offended a lot of legislation legislators okay and it kind of caused a uh a rift if you will i know well there was a period broken five years after that yeah but then they all got turned out eventually so the ones that came in there got the benefit of the turbulence so anyway so let’s let’s go to the thing you you uh after your term as uh as presiding judge was over you came to the court of appeal and i i was the beneficiary of that because you served on the division where i served and well i you asked me to come down there yeah and and i i had a i had a direct calendar court in torrance i had all these cases so i called the presiding judge of la superior court and said could you send somebody out here to take my spot and he said and i don’t have anybody you got to get somebody yourself do i call it municipal courts anybody want to sit in assignment the spirit court torrence no i could call call the pj or the south bay must go no so i became very frustrated and i called the uh bill vickery he was out and i left a mess with secretaries how how come so and so who’s on the media court can sit in the court of appeal for a couple years and i can’t go down there because they won’t can’t get by and replace me so that afternoon i got a call back from the secretary and said an assigned judge would be to your courtroom so then you asked me to come down for 90 days i came down for 90 days like the man that came to dinner i stayed another 90 days i stayed another 90 days another 90 days not another night the other 90. i was there you couldn’t get rid of it i wouldn’t leave you know you couldn’t get rid of me and uh i must confess that i i’m grateful for you for the training you gave me and everything you taught me because it worked do it do it work two ways you know i was kind of bored you were kind of born to be an appellate justice well i i don’t know anyway it’s a it’s a different animal being in the trial court and being on the court of appeal and i i must confess you know i didn’t want to embarrass myself i was working seven days a week i’d go to the library on local librarians saturday and sunday i just well you didn’t have a staffer did you we we didn’t give you a chat three months i did not have a staff i wrote everything from scratch myself and uh and that’s when i was getting in the process and then my dear our dear friend you’re my dear friend mario fucudo retired and then i took over his staff but you know it’s good i started working real hard then i got familiar with the procedure and everything and then like any job it gets easier once you learn it but i i stayed there a year nine months and then i got appointed to division one and i remember when the appointment secretary guy said gee can i stay in division two i really like it there’s now you gotta go over there he says there’s there’s uh we need another man over there you’ll be the second man there’s two women it’s like noah’s ark you know they’ve got to have equal number of males and females okay i wasn’t going to argue with them so i went over to division one and left you but you we weren’t that what was what was that like that television had a sort of a history and then a public uh well although this uh you might not get this the public might not get this later but my predecessor described our division as the branch davidian division the branch davidians being the group that they ended up killing each other getting killed or whatever so there was kind of internet internecine warfare that i don’t want to get any difficulty so but uh well please calm down when you got there didn’t they i got along i got along very well with vayner spencer she was the first black woman appointed to the bench in the state of california she was lovely she’s very kind to me very gracious and beautiful i bet she was you know 30 years my senior but uh i enjoyed working here i had a very good relationship with her and uh so i enjoyed i enjoyed her very much and she wanted me to succeed her as presiding justice and she got her wish yeah i remember that very clearly you’d been appointed to the to the uh trial courts by jerry brown and gray davis pointed you to division one and then when you became presiding justice for the first time you had a a republican governor uh appoint you to the presiding justice position yeah that was a surprise for a lot of people but uh yeah it’s uh the uh let’s just get the dates in there you you became an associate justice on the on division one in august of 2000 you became presiding justice of that division in june of 2008 as i work if i can digress a little bit i yeah before i was appointed to the presiding justice by governor schwarzenegger i was in a funeral uh for the father of our our our court clerk on the court of appeal and my phone started buzzing i had the ringer off you know so and and the priest was in the eulogy talking about the decisions fishing trips or whatnot i wasn’t going to get out and answer the phone i could see it was my my my colleague’s roommate who lives in washington dc so i i after the funeral i called him back and i couldn’t get a hold of him and he called me that afternoon he said you know when i called you i was sitting next to arnold schwarzenegger at a luncheon at the shriver house my roommate is a neighbor drivers and i remember something about you want to be a i want an elevation you want some kind of jet ship you still want that night and he says well i i told arnold he called tomorrow he claims i’ve introduced arnold to uh maria schreiber at uh at the special olympics okay my my roommate was the davis cup captain was involved in the special olympics anyway so so shortly well listen if he’s interested you call this guy i’ll give his name this name doesn’t get out to the public and tell him about it so and then later i got the appointment so there you are well much appreciated appointment too um one only i’d like to go back and just looking at your uh sort of appeal of uh career as a whole is there anything that stands out in your mind about the uh about the cases that you wrote or anything that particularly uh i mean you know if you look into the list of of hundreds of cases that you did there every kind i could think of that the court of appeal handles but is there anything that stands out in your mind about a case or a series of cases that you handled that you felt were particularly important not one particularly roger um i was asked that question when i retired about what i’m proud of writing and i i i i told him the uh uh a milano bob on a llama okay if you’re right mulatto bob on a llama forward and backwards it’s the same it’s a palladro well that’s the writing i’m most proud of that paleodrome [Laughter] well you know what i i i have to say this even though i’m not the one being interviewed is that when you were in this a pro 10 justice on our division division two one of the things that stood out in my mind was that you will always poke your mind in the most collegial way even if it was completely at odds with what the other two members of a panel of justices might be wanting to do and as a pro tem justice you never were a yes man you were always somebody who had the highest integrity and i always felt that was really important to the court of appeal to have somebody like you there and that proved to be true i think throughout your whole career well thank you roger now your career wasn’t over at least concerning judges when you retired in february of 2014 was it no because and it wasn’t because you went into private judging or anything because you did not no i did not go no i’m i’m not my cup of tea what was your cup of tea well i i i’m talking about the milano lawsuit of course yeah i i filed a class action lawsuit and i was a class action painter on behalf of behalf of every judge in the state and every retired person in the state for a back pay and back pension benefits what got you to do that well okay in november of 19 of 2013 i got a letter from all judges got a letter from jar steve jar my good friend the head of the aoc and the president of the california judge association that said effective july 2013 we’re going to start paying you a salary based on the rate raises that state employees got in 2008 through 2000 i think 13. okay so what happened was this the law states that judges pay is raised every year based on the average raise of state employees in 2008 the state employees got 0.97 percent raise judges didn’t get that they got it in 2013. well the question is uh what what happened if the pace should have been higher in oh eight it should pay us for my weight not start in 2013. but the finance department said oh that’s not fair or something so and i couldn’t see how if they recognize that we’re entitled to it that we shouldn’t have it for those five years so i called steve jarre i want to give him a heads up and said steve i’m i’m about to write the state controller chang and demand back pay but i i i wanted to give him a chance to say don’t do it we’re going to take care of it or whatever and also so he’d have a heads up so he could if he wanted to tell a chief justice so he would know what’s going on and he said no we’re not going to do anything about it because i agree with you you’re entitled to money but we’re not gonna do anything about it okay and then i called the is a courtesy the head of the california jet association he was out i said well i’m gonna do something i had a long talk with steve sharp talk to him so i wrote the controller and said on my judicial letterhead i was an email but i used the court computer and i identified myself i’m talking about my pay so it’s not a personal grievance it’s about my pay as a judge and to this day i never heard from him which i thought was rather poor on his part okay i when i was presiding judge or juvenile judge i answered every letter anybody wrote me and basically the controller ignored me i thought for sure he’d just say we got your email we’re looking into it or something but he never gosh so i decided to pursue um you need a lawyer right so my colleague justice chaney recommended uh ronald kennedy and scad narps gadden arap’s a huge firm royal kennedy tr argued a big case in front of me a class action case so i talked to roy kennedy and and i said just just so you’ll know here my litigation goals the judges get paid 100 cents on a dollar they get interest at 10 percent attorney’s fees and costs under the private attorney general statute says i want the judges to get all our paid he said okay he said we did we do it for nothing i said i don’t want you dude for nothing uh you know they they should pay it’s a private attorney general case they ended up going ahead five years over a million dollars in fees but anyway so he said okay so i filed a lawsuit i was the first in january of 2014 i was the class named class action plaintiff and then they started the attorney general demur did this did this just delayed drugged their heels did whatever they could so we won the first we won the first trial hands down boom everything then to a great shock to me the california gender association in i’ll call it cahoots with the department of finance amended the the statute regarding judges pay to say that uh if any interest would be uh on a judge’s salary claim would be at such and such a fun which is half percent rather than ten percent okay well as you know a 10 interest doubles every seven years all right so this was a big big amount as it ended up the interest was about as just about equal to the back pay you know the california judge association sent out this memo saying we saved the day we we agreed to this to save the statute with automatic increases not saying that we gave up your with a monitor about for me anyway about ten thousand dollars in interest and maybe because i’m on the court of appeal the supreme court judges would get a little less but not that much less so that kind of bothered me that the it more than bothered me that the cj would do that and while the bill’s pending i was in communication with the alliance which is a rival group for the california association we’re trying to defeat the statute i’m contacting uh la’s commit city councilman saying your pay is linked with the judges so you ought to be worried about this contacted every retired supervisor to tell them the same thing and and i was told that the literature said well the judges agreed to it so we’re not going to get involved okay the judges being the california judge association so they the statute purported to strip the interest rate out okay so i thought it was unconstitutional i said so publicly i said every employee that sues for wages gets 10 penalties except judges now what’s the justification for that so we uh in the first appeal i wanted to avoid two appeals if we could to get this thing done without two appeals so my lawyers asked the attorney general to brief the issue of the constitutionality of the statute so that we can get it done in the first appeal so they agreed to do that what they did was they raised the issue in a footnote okay you don’t raise an issue in a footnote according to appellate practice rules procedures and whatnot it’s got to be in the body it’s got to have a separate chapter it’s got i mean separate heading and everything so the court appeal and the decision ruled in our favor for all things and said we’re not deciding this because the attorney general waived it by not raising it properly well that was a bummer in my mind turned out it was a great deal because well i’ll get to it a minute so then the time passes the attorney general does not ask for petition for review in the supreme court so the appeal’s final we won yay we go back to court and we just say basically where’s the money okay we don’t raise any issues we want everything it’s a final judgment where’s the money so they raised a whole bunch of arguments that have been decided most of them been decided against him in the first appeal but you’re not supposed to do that you know we made a motion to dismiss appeals frivolous but the court never ruled on it but i it was frivolous all right so we go through a second appeal okay basically no the important thing is oh when he went back to the trial court the ag made all kind of arguments why we shouldn’t get paid they never raised the amendment knocking out the interest rate they never raised it or we didn’t raise it wasn’t raised anything we had a final judgment so on the second appeal i told my lawyers i said look there’s a there’s a principle on appeal that you decide issues on non-constitutional grounds if you can and only if you can’t then you do the constitutional issue so i said we should really push this waiver argument the court appeals said they waived it in the first appeal that’s final decision on the marriage they didn’t raise it in the trial court so we argued that and the second appeal comes down i mean a pin comes down finds waiver again which is really great because had they reached the constitutional issue under past praxis and protocol the supreme court should have should review the case okay anytime a statute is declared unconstitutional it’s a big deal and and expect the supreme court to take okay but this case is not a big deal it’s just it’s just a waiver argument all the other issues were decided in the first appeal there is a rule that the supreme court can in a second appeal can go back and look at for for important reasons or something the issues were to say in the first appeal but weren’t reviewed or but anyway there’s no reason for him to do that this is just a run-of-the-mill case no new press and no nothing so i’m feeling real good about that right so the supreme court had they this time not the first time i don’t understand to this day why they didn’t ask the first time for a petition review i understand to this day why they didn’t raise the statute knocking their interests out and the properly in the first appeal or in front of the trial judgment back so i’m sorry i lost my train of thought okay let me just collect myself here all right so oh that’s right so the supreme court has 90 days uh 60 days to rule okay and i don’t expect him to uh to take the case because it’s not important okay 60 days goes by the court rule says if they don’t decide in 60 k’s it’s automatically denied okay yay yeah we won right no we didn’t because they did a nut pro chunk order after the six days ran and extended another i think 30 days extended they had a right within 60 days to do an extension of another 30 days but they didn’t do it within 60 days okay and that’s not my understanding of what a knuckle protect order is but uh who am i going to complain to you know there’s nobody over them they don’t have anybody over them nobody over them so that’s their word okay no but but then what they did was really threw me a curve the whole court recused themselves for financial interest okay now if they had a financial interest sort of the trial court judge saw the court appeal and i had a financial interest it’s the rule of necessity when the course when the case started you know back in january uh judge burl who did a magnificent job said uh what about you know isn’t there a conflict and both the do you need do i need a stipulation and both the plaintiff my lawyers and the attorney general said no under olsen versus corey it’s rule and necessity there’s nobody else to hear it or there was anybody else to hear it then because every just you know 99 or or so or the judges were affected it was everybody that was a had been a judge before uh july 1 2013 but five years later you know they’re basically saying the rule says it didn’t apply so we petitioned him and said could you clarify this because if the you got the rule of necessity here and if you recuse yourself what about what how does that impact the trial judge and the court of appeal the scientists well they didn’t hear anything back from when they recuse themselves they appointed six judges to sit on the supreme court there was a vacancy for some reason they didn’t didn’t apply for them there were six sitting judges they appointed six judges none of whom had been on the bench more than a year to sit on the supreme court to resolve this case for all purposes okay so these six neophyte that’s a polite word i mean they’re brand new judges inside this case whether or not you know who’s going to get all their colleagues 600 colleagues they’re going to get basically a little over 20 000 and all retired people got a boost you know in their retirement the ones that were tied to the uh the jrs one and jrs2 were impacted because they anybody that retired after 08 would have got their their their base salary set going gee what are these judges going to do okay well the short of it is they denied the petition for rehearing okay the case is final array this october november so okay we go back to court and say you know where’s the money and the controller said we got limited staff and we would we will we might be able to pay it’ll take over a year to pay the judgment okay a year year and a half well there’s very little you can do against the state okay you can’t hold the state at contempt you can’t live beyond the property there’s very little you can do but but you know it would kind of like if they didn’t honor a final judgment it’d be kind of a crisis all right i mean a constitutional crash anyway so judge burl on his own we we’re we don’t know i don’t know what to do this burl says okay i’m going to appoint a i’m going to entertain a uh appointing an auditor to come in and tell the state controller how to do this right in the meantime the state controller is getting beat up in some newspapers because the judgment amounted to 4 40 million dollars and the interest is running at 10 so she’s getting a black and she’s not the one i sued in the first place okay she’s a successive controller so we come up with somebody in the meantime the controller contacts a sacramento firm a politically connected politically connected firm annette phelps who had some experience in doing and handling this kind of thing okay and the controller files this response when we file we we asked the court to appoint this person to do at this company says mynet phelps says give them a month or two and they’ll tell us when they can pay what when the controller can pay just give us a month or two so burro says okay the meanwhile i recognize one of the names of the attorneys which i’ll kind of get back to in a bit this is somebody i’ve known for 25 30 years and i consider her a good friend and he’s a real good guy so they come in minute phelps says come in about is this is march 8 but it says we can pay the judges by june nobody else in august wow you know rather than a year or more year and a half and they did it they did it so the jury got paid in june i got i was let me see the retired people got in june the rest of the judges got in august so we got paid finally first week august the guy okay the background is this this is a long story now the person that the controller contacted that man phelps is an old friend okay i just call his first name tom i met tom 25 years earlier when his his grandpa was my scout master took me up in the high stairs for a month at a time we were the first boy scout group to go on the john muir trail so my spent a lot of time with my scout masters a great guy took all his days weekends what not camping whatever we’d take us down the beach and we’d march in our wheel bought war surplus combat boots you know for hiking boots and he marched through the sand and get get our feet toughened up in the boots anyway he wanted me to meet his grandson who would just graduate from law school so i got to know him young man tom and we kept in touch and at one time tom was a young associate he he had to get a speaker for the his his uh law firm down la and west side so i said i’d do it for him and he went and says well i got a speaker who’s that with the presiding judge los santos superior court why’d you get him he said always a friend of my grandpa’s so i kept in touch with this guy then he moves up to sacramento to do some political stuff okay so when i’m trying to get appointed to the court of appeal for the first time i called tom and said hey tom can you help me he says what just so happens that uh great davis come to my house tonight for a fundraiser so yeah i’ll help you out yes i will help you so that was my he helped me with my appointment to the corporate well what i last saw tom at his mother’s funeral his mother went to grammar school two years ahead of me and my best friend lived right next door to the scout master and her and so she’s tom’s mother great athlete anyway i made her funeral and i’m talking to tom and he said you know i got contacted by the controller on that case and she said well i have this trying to pay these judges and he says would you take the case and tom tom told me told her i’m not taking the case unless you can do the right thing and pay the judges and the counter says that’s what i want so that’s kind of like a small world you know i helped him his career he helped me out twice okay small world so everybody got paid and uh i hope it doesn’t happen again when the judges don’t get paid but if they do uh maybe some if they know about this they’ll listen to this and it might give them some little help or clues or how i went about it not necessarily the right way but uh it worked out okay for us so i wanted to give that message there to me it always looked like what the david and goliath was undertaking and you prevailed with david well if i was david i i had this top-notch law firm top-notch lawyer so i never felt to have the guts to undertake it when there was so much you know flak on all sides from every direction on that thing people were afraid a lot of people are afraid that you shouldn’t rock the boat that things could get worse for the judges well that’s right some people oh yeah i’m gonna i’m gonna make it worse for judges the governor will get mad at us he didn’t we’re entitled to our pay i don’t care what what it gets mad or not it’s not like we’re asking raise it’s not like we’re asking for something we just want our back pay okay which which i thought was a legitimate request and i i would we’re not shy away from asking or telling any employee yeah okay so that’s that’s about all i have to say other than i love being a judge i love being on the court appeal and uh it’s a great career well i think you can be remembered for more than the milano case but the lawsuit’s certainly a way to finish your career i think is doing something on behalf of the judiciary as a whole and what you know it started out as something you’re you were personally confronted by it ends up being something that affected everybody that was in this business well i was happy to do it for the other judges and especially for the widows my secretary in the court of appeal carol fieldhouse was a widow a superior court judge and she got somebody from it and i know other widows of the supreme court judges and they got some money from it so that made me feel happy yeah yeah well you’ve had a great career in all respects i would say and uh certainly something uh about every stage of your life could be emulated by others with no regrets thank you thank you for your kind comments thank you for being my interviewer uh well a pleasure i’m just happy to be able to do this and i wish i could do better but i i’m i’m glad that we had this talk and i think i’m going to always cherish the time that we’ve had together well the feeling’s certainly natural okay well i guess this concludes the interview and uh i wish you a happy day i’ll talk to you later okay thanks roger


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Justice Robert M. Mallano, Second District Court of Appeals
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