Daily Journal Profile of Justice Nicholson

JUDGES AND JUDICIARY • Mar. 09, 2004

Inexhaustible

George Nicholson Has A Reputation for Getting Things Done, On as Well as Off the Appeal Court Bench

By Peter Blumberg

Daily Journal Staff Writer

SACRAMENTO - There's a saying for when Justice George Nicholson sweet-talks other judges, attorneys and civic leaders into joining his many projects.

It's called "getting Nicked."

A fixture in Sacramento legal and political circles for nearly 30 years, Nicholson, or Nick, is known as a consummate networker.

With a list of off-the-bench activities a mile long, it's anyone's guess where this 63-year-old grandfather has found the time to carry a full caseload on the 3rd District Court of Appeal for the last 131/2 years.

Some of his colleagues wonder whether he ever sleeps.

"I wouldn't call him a whirling dervish because he doesn't exercise himself uselessly. He always has a purpose and accomplishes what he sets out to do," said Robert Puglia, who retired in 1998 after 24 years at the 3rd DCA, the last eight as presiding justice. "He has an inexhaustible supply of energy."

Current Presiding Justice Arthur Scotland sounds equally in awe.

"He's really a person of limitless ideas on ways to pull together people and limitless energy to pull it off," he said.

University lecturer. Events organizer. Technology consultant. Sports booster. Youth mentor.

Those are just a few of the hats Nicholson wears. At last count, he was active in at least 10 extracurricular efforts, including two Judicial Council advisory panels, a handful of nonprofit and educational institutions and the statewide planning for this year's 50th anniversary celebration of Brown v. Board of Education. And he does it all, according to his many fans, without seeking recognition for himself.

What makes Nick tick, no one knows for sure. It is clear, though, he wouldn't be who he is today if he hadn't fallen in love with the game of baseball as a young boy.

More than just a pastime he pursued passionately - graduating from high school in Oakland as an all-city center fielder in the 1950s and briefly flirting with a career as a pro - baseball helped steer Nicholson into a career in public service.

"I was very competitive, but I was also a team player," said Nicholson. "I believe our society is a team and we have to work together and be unselfish."

Baseball as a metaphor for how the game of life should be played permeates conversations with Nicholson, just as his chambers are decorated with baseball memorabilia.

Nicholson counts as his heroes all-star third baseman Jackie Robinson, the first black player admitted to Major League Baseball, and Branch Rickey, the Jewish lawyer who helped negotiate Robinson's breakthrough in a deeply segregated nation.

Nicholson's childhood experiences with children of different races - seeing one of his best friends spirited off to a Japanese internment camp during World War II and playing ball as one of few white people in an urban league - turned him into a champion of racial togetherness.

Today, longtime leaders of Sacramento's Asian American, Hispanic and black bar groups speak reverently of Nicholson, who started courting them soon after Republican Gov. George Deukmejian appointed him to the municipal bench in 1987.

"He is probably one of the most community-spirited judges I have ever met," said Jerry Chong, legal counsel for a network of Asian and Pacific Islander activists called CAPITAL. "He is encouraging, resourceful, creative, thoughtful and sensitive regarding different cultures."

Chong and others marvel at Nicholson's determination - whether he's arranging speakers for a 1,500-guest dinner to celebrate Martin Luther King Jr. Day in Sacramento or coordinating a national effort called Playing by the Rules that brings together umpires and judges to teach citizenship to youngsters on ball fields.

Nicholson also is known for forging friendships with common folks and VIPs alike as tenaciously as a kid collecting trading cards.

"If he tells you he knows someone and has a personal relationship with that person and that person is the pope or Margaret Thatcher, believe it," Puglia said. "He knows more people than I think you could contain in a Rolodex."

Nicholson's journey to the 3rd DCA started on the standard track, with a job out of law school as a trial prosecutor. He got in with the right people and climbed the ranks of the state and federal criminal justice establishment in the 1970s and 80s.

A 1964 graduate of California State University, Hayward, Nicholson earned his law degree in 1967 from Hastings College of the Law.

In his first job, as a deputy district attorney in Alameda County, Nicholson worked in the same office as Edwin Meese, who became a close adviser to Ronald Reagan and eventually served as U.S. attorney general.

In 1976, Nicholson took on a prominent role in the state capital as executive director of the California District Attorneys Association, where he established himself a media-savvy lobbyist and fierce advocate of crime victims' rights.

In 1979, he further cemented his credentials as a law-and-order conservative by signing on as a special assistant to then-Attorney General George Deukmejian.

Three years later, when Deukmejian was elected governor, Nicholson won the Republican nomination for attorney general but lost the general election to Democrat John Van de Kamp. Not to worry. Nicholson's close ties with the new governor and the Reagan administration assured him of job security. He spent the next four years as a criminal justice adviser in Sacramento and Washington, where he founded the National School Safety Center.

In 1987, after a brief stint in private practice, Nicholson landed his first judgeship, presiding over misdemeanor trials. Two years later, Deukmejian elevated him to superior court, and in August 1990, over Van de Kamp's opposition, Nicholson joined the 3rd DCA.

Starkly different pictures of Nicholson emerged during the confirmation process: Supporters praised him as an intelligent and principled workhorse, while detractors worried that he lacked the temperament and focus to work on a court of review.

That's all water under the bridge now. To hear it from Puglia and Scotland, who also were Republican appointees, Nicholson fits just fine on the 3rd DCA.

"He's a treat to know and he's a treat to work with," Scotland said. "As a presiding justice, you couldn't ask for someone who is more collegial."

According to several attorneys who've tracked Nicholson's career, he's also committed to fair play. Former state public defender Fern Laethem recalls that she once approached Nicholson at a conference to point out that the panel was stacked with prosecutors. He responded by beckoning Laethem to the speakers' podium.

"He has consistently done things like that because he believes the criminal defense community must be treated as an equal player, with equal funding and resources," she said.

In person, Nicholson's dark, penetrating gaze, deep voice and towering height (6 feet, 2 inches) are offset by an avuncular friendliness and humble manner -- a juxtaposition that seems to fit his mixed reputation as an ambitious prosecutor turned selfless do-gooder.

In some ways, though, Nicholson's public persona remains a bit of a puzzle.
He insists, and his contemporaries attest, he would never do anything to hurt anyone.

"In terms of my philosophy, whether it's political philosophy or jurisprudence or whatever, I learned early from my parents the Golden Rule - just treat others how you'd like to be treated - and I've always tried to follow it," he said.

Yet it's well known that Nicholson, who lobbied to resurrect the death penalty in 1978, actively campaigned to remove Chief Justice Rose Bird from office when conservatives decided she was too soft on crime. The culmination of that effort, the 1986 retention election in which voters ousted Bird and two other justices, stands as the most divisive chapter in the modern history of California's courts.

Journalists from that era recall him as a lightning rod.

"Nicholson was definitely a major player in the effort to redefine how judges should be judged,'' said Betty Medsger, who accused Nicholson and others of dirty tricks in her 1983 book, "Framed: The New Right Attack on Chief Justice Rose Bird and the Courts."

In a curious twist, Chief Justice Ronald George appointed Nicholson in 1997 to a committee whose goal was to help appellate justices educate the public about their own retention elections.

Another then-and-now contrast is in Nicholson's relations with the news media.

In 1983, Nicholson sued the Los Angeles Daily Journal and the Sacramento Bee for publicizing a confidential report by a State Bar judge vetting committee that rated him as "unqualified" for the bench. His $6 million damage claim for invasion of privacy against the newspapers and the State Bar was thrown out by a judge and rejected by the 3rd DCA.

Today, Nicholson works to promote good relations between reporters and judges on the advisory committee to the National Center for Courts and the Media, an affiliate of the National Judicial College.

In a recent interview, Nicholson spoke openly about a range of subjects, but he said he's uncomfortable discussing his political views as an officer of the bench.

Then again, Nicholson hasn't always been shy about his politics. On the only occasion he has faced voters in a retention election, in 1994, he endorsed Judge Robert Bork's approach to interpreting the Constitution in response to a survey conducted by the Traditional Values Coalition, a conservative religious group. Most of the state's appellate judges shunned the questionnaire, deeming it too political.

"If he believes in something, even though it may be controversial, he will take a position on it," said 5th DCA Presiding Justice James Ardaiz, who counts Nicholson as a close friend. "He doesn't hide behind his robes."

Nicholson's track record on the appellate bench, while generally tough on crime, hardly qualifies him as a rubber-stamp for prosecutors or conservative causes.

In 2001, for instance, he threw out a murder conviction because prosecutors failed to provide the defendant with a chance to cross-examine a witness to the crime who had moved to Mexico. People v. Sandoval, 87 Cal.App.4th 1425

In May 2003, he upheld a $1.1 million fine levied by the state's political watchdog agency against conservative activists who led an unsuccessful effort in 1994 to recall the state Senate's Democratic president pro tem.

Also last year, Nicholson dealt a setback to anti-abortion protesters when he held that the CHP had the authority to order them to stop waving signs on a freeway overpass. Sanctity of Human Life Network v. California Highway Patrol, 105 Cal.App.4th 858

Other significant rulings may be of less interest to ideological scorekeepers.
In 1996, he held that the First Amendment rights of Central Valley kiwi growers were violated when they were compelled to help fund a statewide fruit promotion campaign. California Kiwifruit Commission v. Moss, 50 Cal.App.4th 1

In 2000, he analyzed the California Environmental Quality Act and concluded the eastern Sierra resort town of Mammoth could not implement a redevelopment project because the planners had failed to show that the targeted area suffered from urban blight. Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency, 82 Ca.App.4th 511
Two years ago, Nicholson had an opportunity to apply his knowledge of baseball to tort analysis. Nicholson took on the case of a 10-year-old Little League player who suffered a permanent eye injury after being struck by a fly ball that he lost in the sun. West v. Sundown Little League of Stockton, 96 Cal.App4th 351 The young plaintiff lost, but the opinion was not unsympathetic.

"Many a pop fly has disappeared in the sun to a player on the ground. Sometimes it falls harmlessly away from the player. Other times, the ball bounces off the player's mitt," Nicholson wrote. "And sometimes, it hits the player trying valiantly to fight off the glare of the sun. Tragically, in this case, the ball caused a serious injury. Nothing the coach or the league, or Little League Baseball Incorporated, did, however, increased these fundamental risks inherent in baseball."

Attorneys describe Nicholson as a lively participant in oral argument.

"He's always very well prepared and tends to ask penetrating questions," said Deputy Attorney General Kenneth Swenson, who defended the CHP in the abortion protester case. But as with most conversations about Nicholson - Nick the innovative idea man, Nick the networker and Nick the bundle of enthusiasm and inspiration - it's not courtroom memories that define Swenson's image of Nicholson as much as a "fascinating talk" about 3rd DCA history the justice gave to an audience of young lawyers a while back.

In the end, it's Nicholson's ability to engage others in his interests, and motivate them to make a difference, that gets mentioned again and again by admirers.

"Simply put," said J. Clark Kelso, a McGeorge law school professor, "he is a great leader. I feel privileged to be one of the his many followers, supporters and friends."

Biographic George Nicholson Justice, 3rd District Court of Appeal

Career highlights: Appointed by Gov. George Deukmejian, 1990; Sacramento County Superior Court, 1989-90, appointed by Deukmejian; Sacramento County Municipal Court, 1987-89, appointed by Deukmejian; solo practitioner, 1986-87; director, National School Safety Center, 1984-86; Governor's Office of Planning Research, 1983-84; special assistant and senior assistant attorney general, 1979-83; deputy district attorney, Alameda County, 1968-76.

Law school: Hastings College of the Law, 1967

Age: 63

Here are some of Justice Nicholson's recent rulings and the lawyers involved:

•California State Employees Association v. California Public Employees Retirement System, 113 Cal.App.4th 137 For plaintiff: Nancy Yamada, California State Employees Association, Sacramento For defendant: Cynthia Rodriguez, California Public Employees Retirement System, Sacramento

•Burlington Northern and Santa Fe Railway Company v. Public Utilities Commission, 112 Cal.App.4th 881 For petitioners: Carol Harris, Union Pacific Railroad, San Francisco For respondent: James Rood, Piedmont solo

•Thompson v. Miller, 112 Cal.App.4th 327 For plaintiff: Stephanie Finelli, Sacramento solo For defendant: Margaret Carew Toledo, Orrick Herrington, Sacramento

•Mirzada v. Dept. of Transportation, 111 Cal.App.4th 802 For plaintiff: Thomas Kidwell, San Jose solo For defendant: Kevin Corrington, Department of Transportation, Sacramento

•Sanctity of Human Life Network v. California Highway Patrol, 105 Cal.App.4th 858 For plaintiff: Scott Kendall, Elk Grove solo For defendant: Kenneth Swenson, deputy attorney general, Sacramento