Jury Still Out on Judge’s Innovative Style : Kapiloff Follows Own Path on Bench

Judge Lawrence Kapiloff sat atop his perch on the Superior Court bench, black judicial robe billowing from his shoulders like a crow’s wings, and peered down at the defendant standing before him.

The diminutive young man looked as benign as a Boy Scout. But Kapiloff knew better. This 21-year-old punk had broken another kid’s jaw in 1984. Now he was back again, having violated probation by getting tangled in yet another knock-down brawl.

True to form, Kapiloff did not mince words.

“I am not going to tolerate you acting like a pint-sized Rambo,” the judge barked at the baby-faced defendant. “One day you’re going to find out how small you are, and that’s going to be a real rude awakening. Do you understand?”

“Yes, your honor,” came the weak reply.

But when it was time to decide the man’s fate, Kapiloff’s tough talk gave way to a softer side. Some judges might have thrown the defendant behind bars, but Kapiloff chose a different tack, ordering the wiry defendant to repay his debt to society by seeking counseling and working for a month at a local charity. Fail to fulfill the commitment, the judge warned, and it will be off to jail.

It was vintage Kapiloff.

Since assuming a spot on the San Diego County bench in 1982, Lawrence Kapiloff has forged a reputation as a colorful courtroom commentator and perhaps the most liberal member of the Vista bench.

A former Democratic assemblyman from San Diego remembered for his unswerving dedication to a spate of causes, Kapiloff has earned the respect of defense attorneys while becoming the bane of prosecutors, many of whom view the judge as excessively lenient.

Deputy district attorneys who regularly bring cases before Kapiloff complain that the 56-year-old judge is predictably lenient in sentencing defendants who deserve harsher punishment.

Some critics contend that Kapiloff is a judicial activist, sometimes bending legal rules to dispense his own brand of justice.

“His bark is a lot worse than his bite,” said one prosecutor, who must appear before the judge and therefore asked not to be identified. “He’ll send someone to prison occasionally but not as often as we’d like.”

Kapiloff, a short, solidly built man with a neatly trimmed beard flecked with gray, takes such criticism in stride. He concedes that his methods may at times be out of step with the law-and-order mood of the day, but he believes his approach is more effective than the lock-’em-up logic embraced by some members of the judiciary.

With the state’s prisons packed to the rafters, such institutions have become ineffective venues for rehabilitating many of the first-time offenders that sweep through the judicial system, Kapiloff said. With that in mind, the judge sees his role as something more than simply an arm of the judicial bureaucracy.

“We have to try to get through on some human level,” Kapiloff said during a recent interview in his chambers. “Maybe they’ll get the impression that somebody cares, that somebody is really concerned with their behavior and they’ve got to shape up or we’re going to ship them out. And that’s what I’m trying to do.”

Several defense attorneys who appear before Kapiloff regularly praise his intentions and maintain that the judge has the best interests of the public at heart.

Rena Margolis, a Vista attorney specializing in criminal defense, said, “To the extent that he can produce something out of an environment full of pain and misfortune, he does try to eke out some good. I believe he feels he’s doing that, that he’s making some good out of this mess.”

Kapiloff’s unabashed liberalism has deep roots. Born on Sept. 22, 1929, he spent his formative years in Keansburg, N.J., a blue-collar, union-dominated town across the bay from New York City.

The son of a tailor, Kapiloff held down a variety of jobs as a young man, from selling vacuum cleaners to acting as a pitchman calling bingo games on Coney Island.

As Kapiloff describes it, Keansburg was a rugged little city, a checkerboard of streets rife with gangs.

“I was like all the other kids. We used to have kids come down from New York or Newark. We had our share of fights.”

Kapiloff began channeling that aggression early on by boxing at local gyms, sparring with the pros and other up-and-coming bantamweights. It was a passion that was sidetracked only after Kapiloff saw several chums beaten up badly and another friend killed in the ring.

Kapiloff’s other love was politics. His heroes were Franklin Roosevelt and Harry Truman. Truman was a man whose buck-stops-here style Kapiloff admires to this day. At the age of 12, Kapiloff began walking precincts for candidates, knocking on doors and distributing flyers.

“We’d go out and work for the candidate we believed in. And, of course, the candidate we always believed in was a Democrat,” Kapiloff said with a laugh.

After serving a year in the military in Korea, Kapiloff moved west to finish his college education at UCLA, where he graduated with a degree in psychology. Law school soon followed. After passing the bar, Kapiloff took a post as a deputy attorney with the San Diego County counsel’s office, specializing in tax law.

Kapiloff said his decision to run for the Assembly in 1972 sprang in large part out of concern over the rapid rise in property taxes. Focusing on the tax issue and concerns about the environment, Kapiloff scored a narrow victory over five-term incumbent E. Richard Barnes in the 78th Assembly District race.

Kapiloff quickly earned a reputation as one of the Legislature’s most outspoken advocates on environmental issues and as a hard-working lawmaker who would make few compromises.

During his Assembly tenure, Kapiloff was at the forefront of such issues as income-tax indexing, the push for the Peripheral Canal and the battle against acid rain.

Jim Cassie, manager of state governmental affairs for San Diego Gas & Electric Co., said, “Whether he was carrying a bill for handicapped kids or senior citizens, he’d fight to the death. I think that’s why Larry made a few enemies. He wouldn’t give in.”

James Mills, a former Democratic state senator from the San Diego area, recalls Kapiloff as a man “who would always look out for the underdog” and often came up with ideas that were ahead of their time.

“He’s a natural-born maverick,” Mills said. “He came up with quite novel approaches at times. Unfortunately, the Legislature of California doesn’t usually respond to novel approaches.”

Assemblyman Steve Peace (D-Chula Vista), who served as Kapiloff’s administrative assistant for more than two years and ran his 1978 and ’80 campaigns, said his former boss was “an emotionally charged” man who would question the traditional approach to accomplishing a goal if he felt it could be done better a different way.

“He was always straight, open and honest,” Peace said. “There were times when he’d be willing to stand up and fight the one-man battle even though he knew he was alone.”

At times, Kapiloff’s approach to government was downright iconoclastic. During the mid-1970s, Kapiloff joined a group of Berkeley area legislators in refusing to wear neckties to legislative sessions, an action that miffed several colleagues.

It was Kapiloff who brought the infamous San Diego chicken, the winged mascot of the hometown Padres, into an Assembly session, presenting the bird with a commendation as Kapiloff’s colleagues roared with laughter.

And it was Kapiloff who introduced the Legislature to Richard Pesta, aka Captain Sticky. A 300-pound gadfly who would pull on a superhero’s cape and uniform as a crusader for the little man, Sticky came to Kapiloff with concerns about the state’s nursing home industry.

Although many lawmakers might have ignored such advances, Kapiloff took Sticky under his wing, introducing legislation and even taking the caped crusader to meetings with other lawmakers.

But not all was whimsy for Kapiloff during his decade-long tenure in the Legislature.

In 1980, the lawmaker was stung by an article in The Times revealing how he had represented several developers in legal dealings with two state agencies over which he wielded influence. Kapiloff was never formally charged with any wrongdoing, but the revelations prompted a 1982 state law prohibiting legislators from representing clients for compensation before a state board or agency.

Today, Kapiloff still feels the newspaper over inflated the affair, arguing that he never put pressure on any of the state agencies on behalf of his clients. Kapiloff suggests that the newspaper may have been biased against him because he opposed a candidate for the Assembly speakership who was favored in Times editorials.

But in retrospect, Kapiloff said, he would have been wiser to have refused legal work that brought him in contact with a state agency.

“To this day, no one has ever accused me of breaking the law,” Kapiloff said. “But the fact is that a person in that position ought not to represent anybody before government agencies. Looking at it from hindsight, I think that’s important . . . I think I ought to have used more discretion in terms of respect for my job. I didn’t, and I have to assume responsibility for it.”

Despite that blow, Kapiloff ran again for the Assembly in 1980 and won, besting Superior Court Judge Ross Tharp. After serving out his final two-year term, the lawmaker accepted an appointment from Gov. Edmund Brown Jr. to the San Diego Superior Court bench.

Since then, Kapiloff has presided over hundreds of cases, winning both admirers and opponents.

Among the latter is Vista resident Patsy Filo, a community activist who has led a dogged fight against the city’s efforts to form a redevelopment agency. Filo and her allies had their day before Kapiloff last March when they challenged passage of a ballot initiative that ushered redevelopment into Vista.

In rejecting the arguments of redevelopment opponents, Kapiloff called members of the group “snakes in the grass,” suggesting they only raised concerns about the initiative’s text after it had won at the polls, a strategy he characterized as devious.

The episode angered Filo, who says she intends to work to see Kapiloff removed from the bench when he goes up for re-election to another six-year term in 1990. In an obvious jab at Kapiloff, the group has made up buttons emblazoned with a cartoon drawing of a snake and the words “Here Come the Judge.”

“He was a very vicious man,” Filo said. “It wasn’t just what he said, it was the way he said it and the look on his face, filled with wrath and anger. I’m sure the lady of justice hung her head that day, because he certainly made the word justice look very shameful.”

Another case mentioned by local attorneys as an unusual judicial episode involved remarks Kapiloff made at the conclusion of the trial of Carol Phinney, a former Oceanside resident cleared of felony child abuse charges in August, 1985, after the death of her 2-year-old son.

After the verdict was read, Kapiloff urged Phinney to file a civil action, saying he found it “disgraceful that a woman has to be subjected to a case like this because of speculation on the part of too many people who are looking after their own jobs and their own economic interests.” Phinney now has a $1-million lawsuit against the county.

At times, prosecutors say, Kapiloff will skirt traditional judicial tenets to accomplish a goal.

Late last year, a man appearing before Kapiloff for sentencing was discovered to be a carrier of the deadly AIDS virus. Despite protests from attorneys handling the case, the judge tacked on a stipulation to the conditions of parole requiring the man to inform any future sexual partners that he carried the virus.

Kapiloff defends his decision, saying the moral arguments of the episode far outweighed legal traditions.

“Should the law follow morality, not just one person’s view, but the centrist view of what is moral and just and right?” Kapiloff questioned. “It seems to me that in probation, you deal with the total person. The whole idea is to make that person respectful of other people’s rights.”

Kapiloff’s biggest supporters agree that the judge has an accurate moral compass.

David Thompson, the attorney who represented Phinney, said, “His sense of direction is more often correct than incorrect. If he has to bend a rule to achieve a particular result, that result is normally the correct one. If it wasn’t, he would be appealed more than he is.”

Moreover, Thompson said, Kapiloff is extremely tough on defense attorneys trying to get cases dismissed on legal technicalities, generally siding with the prosecution.

Phil Walden, supervising deputy district attorney at the Vista courthouse, said Kapiloff is often frustrated by the rules and regulations of the judiciary, in large part because of his experience as a lawmaker.

“In some ways, he still views himself as a legislator instead of viewing himself as a judge in the true sense,” Walden said. “He’s never reluctant to interject himself into the lawsuit. Instead of letting the lawyers fight it out, he leaps in.”

Other prosecutors argue that Kapiloff fails to act in the best interests of society by handing down sentences that are often lighter than those recommended by probation officials. By refusing to mete out the “proper” punishment or by putting off jail time to give a criminal a second chance, Kapiloff is not effectively fighting crime, they say.

Kapiloff argues, however, that in an “overwhelming number” of cases he follows the recommendations of probation department officials.

In others, mostly those involving youthful offenders or persons convicted of relatively minor, victimless crimes, Kapiloff said he uses a carrot-and-stick approach that has seemed to prove effective.

“The whole idea is to reach them,” he said. “And the last place you can reach them is in jail.”