Judges Leave Their Mark : Smith and Duffy, a Team That Changed the Courts

For a couple of country lawyers, Don Smith and Tom Duffy haven’t done half bad.

In the ‘50s and ‘60s, they built up one of the best regarded law practices in El Cajon. In the ‘60s and ‘70s, they were leaders of the El Cajon Municipal Court, which won national recognition for its innovations.

In the ‘80s, they were promoted to the San Diego County Superior Court. And now Duffy, 59, is succeeding his old law partner as presiding judge of the Superior Court--”the prince in charge of 50 princes and princesses,” as Smith, 63, describes the job.

The ascendancy of Smith and Duffy represents a remarkable consolidation of power by East County judges on a court where lawyers from outside San Diego proper long were considered interlopers.

Only six of the 50 slots on the Superior Court are filled by judges from El Cajon or La Mesa, a count that will drop by one-third next month, when Smith and Judge Gilbert Harelson retire.

But the East County judges--especially the cadre of former Municipal Court judges known only half-kiddingly as “the El Cajon Mafia”--have, in the last few years, exerted an influence on the court and the way it does business out of all proportion to their numbers.

The reforms with which they are identified would not have rankled an institution less steadfast in its commitment to the status quo. Streamlined administration, tighter control of the court’s notoriously sluggish calendar and improved service by posting judges in the county’s hinterlands are hardly the stuff of judicial radicalism.

But in the eyes of the downtown legal establishment, Smith and Duffy and the other East County judges, in a disarmingly respectable fashion, have been rebels in black robes.

“The El Cajon Mafia and the takeover by them of the Superior Court is an absolute, classic example of the zeal of revolutionaries and their ability to overwhelm an unorganized, inchoate, vague opposition,” said Justice Edward Butler of the 4th District Court of Appeal, who led the opposition to the East County judges’ reform program when he was a Superior Court judge.

What Butler, in characteristically hyperbolic rhetoric, terms “a revolutionary stew” first simmered in the relatively tiny caldron of an East County bar where everyone, it seemed, knew or worked with everyone else.

Smith, a San Francisco native, came to El Cajon in 1956, four years after his graduation from law school, to practice law with a classmate, Joseph Doerr. The firm represented the city of El Cajon, and Smith served part time as an assistant city attorney.

Duffy, an El Cajon native, joined the firm in 1958, after practicing briefly with Harelson, the La Mesa city attorney. When Doerr was named to the El Cajon Municipal Court in 1959, Duffy became city attorney of El Cajon. Smith remained as his assistant.

The city posts exposed the ruddy-faced, Irish lawyers to administrative chores, politics and public service--experience that later would define their interests and strengths on the bench.

Smith was the first to get a judgeship. When Doerr died in 1962, Duffy nominated Smith to succeed him. Gov. Edmund G. Brown Sr. appointed Smith, a fellow Democrat, to fill the vacancy.

Duffy, a Republican, followed Smith onto the bench in 1967. One of the organizers of Republican Associates, a group of grass-roots GOP activists tied closely to Ronald Reagan’s candidacy for governor, Duffy was Reagan’s first judicial appointee in San Diego County.

With the other Municipal Court judge in El Cajon, Alfred Lord, Smith and Duffy ran the courthouse virtually by committee. “We brown-bagged almost every day,” Duffy recalled. “We discussed all issues. Generally speaking, we wouldn’t do much or change anything unless we were unanimous, which is rare.”

But change they did. Duffy initiated a program of ordering drunken drivers to go to driving school as a condition of probation. Smith devised the “trial by declaration”--a traffic hearing in which the witnesses submitted their statements in writing, saving the time and cost of requiring police officers to appear in court. Both practices now are in wide use across the state.

“We just looked at things and asked ourselves, ‘Can it be improved?’ ” Duffy said. “For the public, as a general rule, it probably would be a flip of a coin whether they’d rather go to a dentist and get a tooth pulled or go to a court . . . So the more convenient you can make it for them, I think, the better the system is.”

It wasn’t until the mid-1970s, though, that all the conditions were in place for the judges’ reformist instincts to fully flower.

Edmund G. Brown Jr. was governor. Bob Wilson represented East County in the state Senate. Wilson, who had the governor’s ear when it came to judicial appointments in San Diego County, got his old Army buddy and law partner G. Dennis Adams named to the growing El Cajon Municipal Court. And the East County good ol’ boys started pulling strings.

With a population explosion under way in East County, the El Cajon judges thought the public deserved a full-service courthouse. The Municipal Court, by law, could handle minor civil lawsuits, traffic infractions and preliminary proceedings in criminal cases. But lawyers and clients with more serious matters to litigate, including domestic cases, had to go downtown, where the Superior Court was quartered.

The downtown court staunchly opposed the creation of a branch Superior Court in El Cajon, fearing it would be hard to administer, inconvenient for San Diego lawyers and counterproductive to efforts to revitalize the city’s downtown core.

So the El Cajon judges turned to their friend state Senator Wilson to help them win the added powers their downtown colleagues wouldn’t share.

Thus was born “the El Cajon experiment”--legislation carried by Wilson and signed by Brown in 1977 that granted the El Cajon bench, alone among the state’s municipal courts, most of the duties otherwise possessed only by superior courts.

As Butler recalls it, he and Superior Court Judge Franklin Orfield--armed with resolutions by the San Diego County Bar Assn. and the county trial lawyers association and a vote of the Superior Court judges opposing the experiment--went to Sacramento believing they had a solid shot at lobbying the Legislature to defeat Wilson’s bill.

They had not reckoned with the arm-twisting skills of Tom Duffy, however.

“Duffy was up there working the back corridors,” Butler said. “He had that thing all lined up, and we go up there and wham!”

Even after the East County judges’ victory in the Legislature, Butler continued to fight the expansion of their powers, mounting a challenge to the constitutionality of Wilson’s bill.

But the deck was too heavily stacked against the downtown judges’ resistance. Governor Brown’s new chief justice, Rose Elizabeth Bird, through the state Judicial Council, assigned superior court authority to the El Cajon judges. The experiment has survived until today under those terms--and spread to the county’s other Municipal Courts as well, sharply reducing the criminal caseload, in particular, of an overburdened, understaffed Superior Court.

Even Butler admits, now, that the East County judges had the right idea. “I have to say it’s not all that bad,” he said. “They have seen more clearly than probably the rest of us what could be done and needed to be done. Decentralization of the courts in the county is an idea of a time that’s about here, much as we deplore it.”

The El Cajon experiment redounded to the benefit of virtually everyone associated with it.

Lord, in 1977, became the first El Cajon municipal judge ever elevated to the Superior Court. Municipal Judge Gerald Lewis won election to the Superior Court the next year, and later was appointed to the 4th District Court of Appeal.

Brown elevated Smith, Adams and Municipal Judge Howard Bechefsky to the Superior Court in 1979. When Bechefsky was killed in an accident a year later, Duffy, who had turned down earlier appointments, accepted an offer to replace him.

Gains were realized even by a second generation of El Cajon lawyers.

Michael Brennan, who headed the El Cajon office of Defenders Inc., the public defender organization, and William Howatt Jr., El Cajon chief for the district attorney’s office, won appointments in 1979 to the El Cajon Municipal Court. (Brennan died last year.) Thomas Murphy, a partner in Smith and Duffy’s old firm, succeeded Duffy on the Municipal Court, then was appointed to the Superior Court last year.

“Some people accused us of creating the El Cajon experiment to get us all transferred downtown,” Duffy quipped.

Meanwhile, Harelson, who had been appointed to the Superior Court in 1970, outpolled Butler in a vote of their colleagues and was elected presiding judge in 1981. With the later elections of Smith and now Duffy, judges from East County have held the Superior Court’s top job since then, except for a two-year stint served by Judge William Low of San Diego.

“The rednecks of East County,” Butler said, “let the effete dilettantes downtown understand that there’s raw strength out there amongst the manure.”

While Duffy takes pride in having kicked up his share of that manure, he insists that there has been no conspiracy by the East County judges to grab power in the Superior Court--that there is no redneck Mafia making offers the other judges can’t refuse.

“We’re all friends, but we’re not plotting, we’re not organizers,” he said. “By the very nature of what we’ve done, we’re probably more inclined to look at judicial administration--more so than many other judges might, because of our companionship together and because of our thought process and because of the fact we looked at our court structure (in El Cajon), which was small, and we were able to change it and improve it.”

Under Smith’s leadership during the last two years, the East County team has focused its renovation efforts on the civil and domestic courts.

Smith helped lead a campaign in Sacramento and before the county Board of Supervisors to obtain nine additional judgeships for the hard-pressed Superior Court. The judges convinced the supervisors to lease an office building for use by the domestic courts beginning next spring, making room available in the downtown courthouse for more of the newly-won judicial positions.

Starting Jan. 2, meantime, the court will implement new rules designed to slash the long wait to get civil lawsuits resolved--now often as much as three or four years from the time of filing. The new system depends on computers and judges to ride herd on lawyers, imposing frequent deadlines on attorneys to encourage them to keep cases moving.

Smith says Duffy after him, like Harelson before him, is a member of the “proactive” school of court management, and thus likely to make the new rules work.

Other judges and attorneys, in fact, say Duffy’s personality may make him even more apt than Smith to succeed in court reform. Where Smith is blunt, even argumentative, they say, Duffy is smoother, more subtle.

“Smith is more conservative than Duffy,” adds Adams, who says both men are “like fathers” to him. “Duffy is more open to innovation than Smith. You’ve got to talk to Smith. Duffy, if it strikes his fancy, he’s off and running.”

Smith, who insists his old law partner is no less blunt and unforgiving than he, says Duffy has a special knack for deflating the pompous, and he warns potential adversaries to be prepared to be struck down by the new presiding judge’s rapier wit.

Once, Smith recalled, Duffy ruled against a motion by a particularly haughty lawyer.

“Your Honor,” the attorney sniffed. “I don’t understand your ruling.”

As Smith tells the tale, Duffy glanced at the jury, then turned to the lawyer.

“Think about it awhile,” Duffy said. “It’ll come to you.”