Robert Gardner, 93; Colorful Judge Was Known for Witty Writings on the Law and Bodysurfing
Robert Gardner, a colorful, bodysurfing judge who became as known for his witty writing as for the no-nonsense justice he dispensed for more than half a century on court benches from Newport Beach to American Samoa, has died. He was 93.
Gardner died Saturday in his sleep at his home in Corona del Mar, said his daughter, Nancy Gardner. She said he had been in declining health for the past year and died of natural causes related to aging.
When Gardner sat on the state appellate court, his written opinions attracted a statewide following.
The University of Santa Clara Law Review, which sometimes reprinted his pithy remarks under the title “A Gallery of Gardner,” cited his 1973 caution to lawyers and judges that jurors’ ability to weigh all evidence must be respected.
“A juror is not some kind of dithering nincompoop,” Gardner wrote, “brought in from never-never land and exposed to the harsh realities of life for the first time in a jury box.”
When Gardner sat on the Orange County Superior Court -- a job he considered his most useful and productive -- his decisions were quoted by lawyers and journalists alike. A favorite was his comment in a divorce case after passage of the so-called “no-fault” Family Law Act of 1969:
The act “may not be used as a handy vehicle for the summary disposal of old and used wives. A woman is not a breeding cow to be nurtured during her years of fecundity, then conveniently and economically converted to cheap steaks when past her prime.”
His writing also accomplished serious reforms. A Juvenile Court judge for six years, he worked diligently for juvenile rights and, through his articles and speeches, helped change California law to give youngsters the right to confront a witness, to legal counsel and notice of proceedings.
“I was extremely proud,” he told The Times in 1969, “when U.S. Supreme Court Justice Abe Fortas referred to one of my articles when making a ruling that gave juveniles more rights in court.”
Gardner published the first of his two books, “The Art of Body Surfing,” in 1972. It was about the avocation he had pursued from boyhood.
Also a board surfer and skin diver, Gardner described his watery adventures in whimsical columns for local publications, including the Daily Pilot newspaper in Costa Mesa.
As a Newport Beach city judge, he once wrote, he stowed his surfboard in the little-used women’s section of the city jail for quick surfing runs between cases. Interrupting his surfing to handle an irate woman’s protest of a parking ticket, he wrote, he once leaped behind the bench without putting on trousers and shoes. Unbeknown to him, the front of the desk was open, and when the woman saw his hairy legs she paid up and fled.
After later encountering her socially, he wrote, “She assumed that I was naked from the waist down and leaped to the conclusion that I was a flasher and liable to jump to my feet and expose myself.... “
Gardner also published the book “Bawdy Balboa” in 1993 which was about growing up in the beach community during Prohibition.
He wrote articles throughout his judicial career for magazines, including legal journals and the Saturday Evening Post -- on subjects ranging from juvenile rights and the death penalty to wearing a lava lava [“a skirt,” he said] on the bench in Pago Pago.
The judge, who liked to say “I may not be loved, but I’m respected.... I have a lot of friends in the pokey,” was admired not only for his words but for his handling of lawyers and the law. Some attorneys dubbed him “No-Way Gardner” for cutting off tortured legal arguments with a curt “No way!”
A moderate Republican, Gardner avoided politics and ignored pressure from Orange County conservatives. In 1966, he appointed the first Orange County grand jury foreman of Japanese ancestry, telling The Times years later, “I wanted to strike a blow for fairness.” The act was in response to his assignment as a naval intelligence officer to monitor the county’s 18 Japanese American farmers in 1941. After the farmers were interned when the United States was drawn into World War II, Gardner was so disgusted that he requested a transfer overseas.
Born Dec. 27, 1911, in Arlington, Wash., Gardner first arrived in Orange County as a baby, then lived with his railroader father and mother in Green River, Wyo., for a few years. In 1921, during a railroad strike, he was sent to Balboa to live with relatives and stayed.
Gardner wanted to be a forest ranger, but yielded to his mother’s wish that he become a lawyer and earned bachelor’s and law degrees at USC.
In 1936 he went into private practice and did so well in his first case -- getting a hung jury for a murder suspect he was defending -- that he was asked to join the Orange County district attorney’s staff. In 1938, he was appointed to the part-time Newport Beach Municipal Court, and remained there until joining the Navy in 1941.
Rising to the rank of lieutenant commander, Gardner served in the Pacific theater on Adm. Chester Nimitz’s staff.
In 1947, Gov. Earl Warren appointed Gardner to the Orange County Superior Court. He was only the county’s fourth judge of that rank and at that time the youngest Superior Court judge in California.
He was elevated to the 4th District Court of Appeal by Gov. Ronald Reagan in 1969. Before stepping down more than 11 years later, Gardner helped create a branch for the court in Santa Ana.
Saying that he retired only because judicial rules discouraged working past 70, Gardner went job-hunting. In 1982, to his surprise, he was named by the U.S. Department of the Interior as chief justice of American Samoa, and spent three years in the capital city of Pago Pago. The experience, he later told The Times, “was sort of like being a king.”
From 1985 until he retired in 2000, Gardner made himself available in Orange County as a private judge who worked on settling cases out of court. He also accepted temporary appointments to the trial court.
Gardner’s wife of 58 years, Kathryn, died in 2001, and his daughter, Patty Gordon, also preceded him in death. In addition to his daughter Nancy Gardner of Corona del Mar, he is survived by two granddaughters and six great-grandchildren.
At Gardner’s request, there will be no funeral. Any memorial donations can be made to the Newport Beach chapter of the Surfrider Foundation, 323 Jasmine Ave., Corona del Mar, CA 92625.
The blunt judge took no joy in his longevity, an attitude his daughter confirmed.
“If you want to live a long time, it’s very simple,” he told The Times in 1988. “All you have to do is pick your ancestors carefully. All four of my grandparents and my parents lived into their 90s. I can’t think of anything worse.”