Hanging Up His Robe Unhappily : A Jury of Peers Finds Judge Butler Has Few

If you were a Hollywood producer casting the role of a quintessential judge, you’d want Ed Butler to read for the part.

For starters, Butler’s got the credentials: He’s a judge in real life, on the 4th District Court of Appeal. More to the point, he looks the way a judge from Central Casting might look. Crowned with a stubborn thatch of silver hair that matches imposing eyebrows, Butler is a solidly built man whose broad face bears an intriguing pattern of lines etched by years of experience.

His voice is deep and rich, his conversation laced with quips and quotes from the classics. His manner is dignified but relaxed, almost avuncular; there’s the pensive, scholarly side, but it’s enlivened by a quick wit and warm smile.

Now, however, this judge for all seasons is being stripped of his robe--and he’s not the least bit happy about the prospect. If not for a state law that requires judges to retire at age 70 or have their pension cut, Butler says, he would remain on the bench as long as the synapses continued to fire.

‘Doesn’t Seem Fair’

“Here I am chugging along the track, full steam ahead, all my engines running, and they want to steer me off on a siding and dump me in the rail yard,” Butler groused during a recent interview in his wood-paneled chambers. “It really doesn’t seem fair.”

Meanwhile, many in the local legal community are bemoaning the looming loss of one of the strictest guardians of individual liberties on the 4th District court, which handles appeals for San Diego and Imperial counties.

While few foresee any dramatic shift in the court’s posture with Butler’s departure, observers say the justice’s voice--often heard most forcefully in his stinging dissents--will be sorely missed.

“When he went to the appeals court he was a breath of fresh air, not only with his brightness and ability to come to a just and rational decision but for his flair, style and ability to write and put humor into something that is otherwise humorless,” said John Murphy, an attorney and president of the American Civil Liberties Union’s San Diego chapter. “His retirement is a big loss.”

Candidates Queuing Up

Butler’s official D-Day at the court came Feb. 26--the day before his 70th birthday--but a handful of unresolved cases will keep him on the bench at least through this month. All the while, candidates are queuing up to succeed him. Among the top contenders are Superior Court Judge Richard Huffman and Judges J. Morgan Lester and J. Richard Haden.

When Butler does evacuate his chambers, he will close the latest chapter in a storied career that has included fighting in two wars as a U.S. Marine, a campaign for the mayor’s office, five years as San Diego city attorney and a stint on the Superior Court bench.

True to form, Butler does not plan to spend his golden years sauntering about the golf course. He has hired on with a “rent-a-judge” company, which provides jurists for litigants for a fee, and he hopes to do some pro bono legal work in the community as well. In addition, Mayor Maureen O’Connor recently appointed Butler chairman of a committee that will review the City Charter.

“I leave with regret. I do not plan to spend my time wandering around the zoo or feeding pigeons,” Butler said. (Perhaps not, but the justice’s clerk, knowing that her boss appreciates good humor, recently presented Butler with a sack of pigeon food and a pass to the zoo.)

Depression Influence

Edward Thomas Butler began life as the son of a mails superintendent and a housewife in Grand Rapids, Mich. Though his family wasn’t poor, Butler believes growing up during the Depression years--with the “scars of poverty, the terrible uncertainty, the grimness of the economic outlook and people living close to the bone all around us”--marked him for life.

Indeed, the young Ed Butler had struggles of his own. His finances ran dry midway through college, so he signed on with the Merchant Marines for a spell before finishing up at George Washington University in Washington, where he studied government. After graduation, he joined the Marine Corps and was commissioned before Pearl Harbor. He married a college classmate, Hope Lange, in January, 1942, and was promptly sent overseas. He was gone five years.

Then came Harvard Law School and the challenge of supporting a wife and two children while mastering torts and evidence. The Butlers received a meager sum through the GI Bill of Rights, but it took two other jobs--plus a check the talented tenor collected for singing in the Harvard Chapel Choir--to make ends meet. One position was with an outfit that conducted polls.

“My job was to take the Boston Globe into the subway and ask people if they’d seen certain advertisements and what they thought of them,” Butler recalled with a grimace. “Most people told me to get lost. I hated it. I got 50 cents an interview and figured out I did not want to be a door-to-door salesman.”

150 Inches of Snow

The winter of 1948 brought 150 inches of snow to Boston, and Butler decided he’d had enough of the cold. So the recent graduate packed up the family and headed west. He soon snared a job with a Los Angeles law firm that represented blue-chip corporate clients, General Motors among them.

“None of the partners had been to war, and they were very impressed because I was a major,” Butler recalls of his success in landing the position.

He wasn’t there for long. On the day his first trial representing General Motors wrapped up, the rookie attorney emerged from the courthouse to find newspapers blaring President Truman’s intention to intervene in the Korean War. Major Butler, who had remained on active reserve, was in uniform and headed for battle before he knew it. He served for three years as legal officer to the First Marine Aircraft Wing.

In 1959, Butler moved to San Diego to work for an electronics firm developing a digital voltmeter. He wound up running the company, but four years later he was ready for a change and joined a local law firm. In 1963, a new challenge surfaced: City Atty. Alan Firestone died in midterm, and Butler was appointed to the post by the mayor.

Conflicting Celebrations

“Everyone was shocked,” recalled Dist. Atty. Edwin Miller, a deputy in the city attorney’s office at the time. “Ed Butler came out of nowhere. He was an unknown quantity. Everybody was counting on another fellow getting the job.”

In fact, the day the Butler appointment was announced, all the deputy city attorneys were at Lubach’s restaurant having a premature celebration for the candidate who had seemed a shoo-in for the post.

“I took the City Council down to Lubach’s for a congratulatory drink and all these people trooped out of there all glum-faced,” Butler said with a smile.

Soon after, William L. Todd Jr., now a colleague of Butler’s on the 4th District bench, wrote an article for the San Diego County Bar Assn.’s magazine, titled “Who’s Ed Butler?” When he read that, Butler stiffened his jaw and resolved: “By God, I’ll show you who Ed Butler is.”

Grammatically Demanding

And he did. Attorneys who worked under Butler remember those years as exciting, challenging and rewarding. He quickly turned hostile troops into loyal soldiers, and although he was something of a taskmaster--a perfectionist who demanded grammatical as well as legal accuracy--many of his deputies look back fondly on his years at the helm.

Dist. Atty. Miller says he’ll never forget a favorite phrase Butler used to motivate his deputies to improve their writing--”We are not mere scriveners.”

“Ed used to say that all the time,” Miller recalled.

“He was a marvelous boss and taught me literally everything I know,” said Asst. City Atty. Curtis Fitzpatrick, a young deputy during Butler’s tenure. “He was demanding and had a very quick mind, so you had to be on your toes. But if you did good work, you got credit for it.”

Strolled the Halls

Robert Teaze, who retired as assistant city attorney in 1984, said Butler had a habit of strolling the halls, poking a head in this office or that, and sometimes sitting down for a spell and helping an attorney work through a legal problem.

“He had a very hands-on style, as opposed to (City Atty.) John Witt, who is more of a delegator,” Teaze said. “No opinion left the office without his imprimatur on it.”

Those outside of the office who worked with Butler during that era sing his praises as well. The Rev. George Stevens got to know the city attorney through weekly meetings Butler held with the Citizen’s Interracial Committee, a group that brought problems faced by San Diego’s blacks to the city’s attention.

“Ed Butler was one of the first white leaders in elective office to show sensitivity to the plight of black people in San Diego,” Stevens said. “He is one of the most honorable men I know, and he will surely go down in history for speaking out on matters that disenfranchise any person.”

Civil Rights Stance

One of the most important issues Butler tackled, Stevens recalled, was the conduct of San Diego police in their arrests of blacks.

“He was very forceful in speaking out against these injustices and pursuing reforms within the Police Department,” Stevens said.

Butler, too, remembers the vexing civil rights problems of that era.

“The Congress of Racial Equality would do these coin-ins at the banks, lining up at noon hour and exchanging a dollar for 100 pennies,” he recalled. “It would drive the bankers absolutely bonkers. They’d try to get me to arrest them, but I’d tell them they’ve got the right to make change. What these people wanted was for the banks to hire more blacks.”

For Butler, those five years at City Hall were among the most exciting of his career. The city attorney’s office was “the fulcrum of many different forces,” he said, “a tremendously exciting place.”

Sought Greater Role

Indeed, the excitement of his post stirred a desire to play a greater role in things. So he quit and ran for mayor.

“Politics is tremendously rewarding, a terrific place to feed, clothe and house an ego,” Butler said. “I felt the city attorney’s office was a political cul-de-sac. I wanted to run for mayor, and from there run for governor and then go on to national office.”

There were 15 candidates in the primary election of 1971. In the end, Butler, a Democrat, faced off against Pete Wilson, the heavily favored Republican. He lost by a wide margin and, with no other interesting political offices open, returned to private practice.

The call to sit on the Superior Court bench came in 1975, not long after Butler served as San Diego manager of Edmund G. Brown Jr.’s successful gubernatorial campaign. The appointment was “classic politics,” Butler concedes.

Had a Big Gong

His six years at Superior Court were stimulating ones, he said, offering a chance to “see the community from a whole new perspective.”

Others also enjoyed his tenure.

“He had this big gong in his courtroom and . . . if you went over your time estimate in presenting your case, I seem to recall he would have his clerk gong you,” said the ACLU’s Murphy. “It was always a pleasure to appear before him.”

Butler was prone to dispensing unusual sentences as well.

There was, for instance, the case of the ex-husband who was delinquent on child-support payments to his family in Pontiac, Mich. Turns out the man was broke and nearly starving himself, but was an artist and had a large collection of drawings. In a decision that made headlines in Michigan newspapers, Butler ordered the man to send some artwork to the Pontiac Department of Welfare, which, the judge figured, could then sell the pieces and give the money to the artist’s needy family.

‘One Goofy Judge’

Michigan authorities, however, didn’t take kindly to the idea and shipped the paintings back. Butler himself then sold the drawings to an acquaintance and sent the $500 he received to Pontiac.

“I caught hell from the mayor of Pontiac because I called it a cultural wasteland,” Butler recalled with a laugh. “Everyone back there thought I was one goofy judge.”

Retired Superior Court Judge Gilbert Harrelson said that in addition to Butler’s “forthrightness, credibility” and work ethic, he will remember his colleague for his unflagging sense of humor. Through the years, the two judges have become legendary for their comical sparring at one Bar Assn. event after another.

“Ed always brags that he’s a great Irish tenor, and he once told me his voice was insured for $50,000,” Harrelson recalled. “I asked him what he did with the money.”

‘More Lives Than a Cat’

In 1982, Butler was elevated to the 4th District court by an almost freakish twist of fate. Gov. Brown had appointed another candidate, then-South Bay Municipal Court Judge Ernest Borunda, but Borunda withdrew his name suddenly for unexplained “personal reasons.” So Butler got the nod. When Brown called with the news, Butler recalled, the governor told him, “Ed, you’ve got more lives than a cat.”

During his years on the appellate bench, attorneys and colleagues say, Butler has distinguished himself as a staunch defender of the First Amendment and a writer who is uncommonly adroit at turning a phrase and making a point with an analogy.

Indeed, while most legal writing is as dry as stale toast, Butler takes pains to spice up his opinions with nuggets of humor and quotations from assorted sources. A sampling:

- In a dissent that defended a theater group’s request to stage a political play in Horton Plaza, Butler roundly chastised the mall’s management for prior restraint in prohibiting the activity: “Chicken Little and Henny Penny are alive and well!” he wrote. “Hearing bumps in the night, Horton Plaza seeks to exorcise phantoms of its imagination.”

The source of some of the language, a footnote informed, was an old Cornish prayer.

- Charles Dickens provided some inspiration for an opinion that returned a giant tortoise to its owner. Butler, in rejecting the city’s argument that Rocky the tortoise was a “fighting animal,” wrote: “If the law supposes that . . . the law is a ass, a idiot.”

- In a unanimous opinion in 1984, Butler reversed a ruling by a lower court judge that had required an attorney who wears a turban to explain his reasons for the millinery or not wear it in the courtroom. He had a little help from Cicero on this one.

“We observe (Ken) Jensen’s unusual sartorial tastes have been exhibited in San Diego courtrooms for some 13 years,” Butler wrote. “With the apparent exception of Judge (Jack) Levitt, he now appears without remonstrance from the judiciary who arguably are resigned to what they perceive as the inevitable. O tempora! O mores!”

- And in a dissent indicative of his conservative stance on property rights, Butler sided against a demonstrator who trespassed on General Dynamics-Convair property to hang peace ornaments on a pine tree at Christmastime.

“Thus, to permit persons to cross my property to get to the seashore gives them the right to pick my peonies, tiptoe through my tulips or sup on my squash,” the justice wrote with indignation.

Although few predict a philosophical change in the court with Butler’s departure, the justice’s absence will certainly be felt in other ways.

Wisdom Will Be Missed

His 4th District colleague and fellow Brown appointee, Justice Howard Weiner, said Butler’s “wisdom, enthusiasm, diligence and commitment to the fundamental rights set out in our Constitution” will be missed.

“With all of his experience, it is somewhat surprising to find in Ed a naivete and idealism and a belief that democracy can and must work,” Weiner said. “I came across a phrase of his recently that sums up what he is all about. ‘The halls of government should always be illuminated,’ he once wrote.

“That kind of says it all.”