Following a distinguished career, Judge Richard Silver does some legal business.
Thursday, January 8, 2004
He was known as the “judges’ judge,” the man on the bench who resolved some of the county’s most Byzantine disputes, who taught his counterparts in Russia about administering justice, and who poured himself into cases with incredible dedication.
For 25 years, Richard Silver worked tirelessly in Monterey County Superior Court, generally drawing praise from those who appeared before him and from the general community that admired the thoughtfulness of his rulings.
In 2000, Silver, 61, tired of waiting for then-Gov. Gray Davis to elevate him to the state District Court of Appeals, resigned. Since then, he has been resolving private disputes for the Judicial Affairs and Mediation Services (JAMS), a national firm that works mostly with corporations and companies.
JAMS, which calls itself “The Resolution Experts,” likely could not have made a better choice than Silver. As a judge, Silver was considered brilliant at resolving complicated cases.
Attorney Andrew Swartz called him “by far the best settlement conference judge we have ever had. This is a man who could settle virtually any case.”
Attorney Gary Gray cited Silver’s “uncanny ability to sort out complex legal issues and to facilitate settlements in the most difficult cases.”
Silver considers his work now “a world apart” from being a judge.
“I spend much more time in direct contact and discussion with the parties and helping them to understand the law, how it affects their problem, and analyzing potential solutions,” he said. “My success comes through the force of reason, not the force of law. They make the decision. I don’t.”
Davis’ failure to name Silver an appellate judge disappointed many area attorneys.
Attorney Larry Horan called it “absolutely inconceivable that a judge of his acumen and his capability was not elevated a long time ago.”
Gray, a former prosecutor, said, “Judge Silver had a real facility for focusing on the crucial legal issues in the cases, sometimes extracting pivotal legal points of law that even the attorneys had not considered. In that respect, it is a shame that he was not selected for the appellate bench, where true legal scholarship is paramount.”
Reflecting on being bypassed, Silver said, “It may have been my earlier background. It may have been too controversial for Davis.”
Silver represented black militants during the tumultuous early 1970s and was a tenacious defender of civil liberties. The walls of his judicial chambers until he retired featured a courtroom artist’s renditions of the young, long-haired attorney representing the Soledad Brothers, a group of radical black prisoners charged with murdering a guard in 1969.
This passionate advocate for the underdog emerged from a Dickensian childhood in Oakland. His parents divorced when he was a toddler, and he was orphaned as a teen. When he was 12 or 13, his mother died in a house fire in Fresno after she fell asleep while smoking. He was 16 when his father, a gambling addict, died.
Silver was reared by an aunt and uncle in Oakland, where he worked, from high school through law school, behind the deli counter run by his uncle in a large market.
“I grew up in an environment to respect the law, to work hard and to make a living,” Silver said.
While filling thousands of orders for slab bacon, neck bones and ham hocks, the young Silver learned to recognize and appreciate humanity’s frailties, an attribute that served him well as he passed judgment on the often troubled people who came before him.
Entering the University of California at Berkeley as a freshman in 1959, Silver paid little attention to political issues. He extended the then-required two years in the ROTC with two more, obligating himself to military service. After graduating in June 1963 with a degree in political science, Silver started at UC’s Boalt Law School.
“Young Jewish kids became lawyers or doctors,” he recalled.
The summer after his first year at Boalt, Silver worked in the Civil Rights Division of the Department of Justice on school desegregation and voting rights cases. “Just being around those people, being in Washington, DC, was an incredible introduction to law,” he said. “I developed a sense of empathy and compassion for people and a recognition of significant injustices.”
His promised two-year Army hitch followed. After a year stateside, he was sent to Vietnam in August 1967, a time when most Americans believed the war was winnable.
Then came the massive and widespread North Vietnamese Tet offensive in early 1968. Silver was stationed in a small city near the Mekong Delta.
“Helicopters returned stacked with the bodies, more than you can ever imagine,” Silver recalled. “It was probably at that time that it became clear to me that war under any circumstances was not the way to solve things.”
Silver worked with the Vietnamese, teaching English and helping them build hospitals and housing. He received the Vietnamese National Civil Affairs medal, and the Bronze Star for meritorious service in a combat zone.
Following his discharge, he joined the Carmel law firm headed by famed civil liberties attorney Francis Heisler, whom Silver described as “a man of incredible intellect and vision and a driving sense of justice. The issues of civil liberties and the protection of the individual against the government were paramount.” Bill Daniels, a close friend of Silver’s from Boalt, later joined the firm.
In early 1977, Gov. Jerry Brown appointed Silver to Superior Court. There was some opposition within the District Attorney’s office and elsewhere.
Attorney Doc Etienne said, “I wrote opposing his appointment, because I just didn’t feel that he would best exemplify what I like to see in a judge.” But after trying several cases before Silver, Etienne said he became “a Silver enthusiast…and I remain one to this day.”
Silver ruled on many significant cases during his quarter-century on the bench, among them:
• Allowing limited access by striking agricultural workers in the Salinas Valley onto fields to communicate with non-striking workers.
• Curtailing censorship of prisoners’ newspapers by the state Department of Corrections.
• Ruling that the city of Oakland could not take the Oakland Raiders by eminent domain.
• Reaching a settlement in an enormous multi-state class action suit on the usage of polybutelene pipes.
• Presiding over settlement negotiations in the death of John Denver, who perished when his experimental plane crashed into Monterey Bay.
In the area of environmental law, Silver made some of his most significant decisions. Over the course of several years, he ruled on the controversial Carmel Valley Master Plan. Silver initially rejected it, imposing a building moratorium in the late 1970s, then frequently returned it to county officials because he was not satisfied with its revisions.
Reflecting on some of the criticism about Silver, reporter Robert
Jones, who covered the courts for the Herald from 1983 to 1996,
said Silver “was not a ‘liberal, activist’ judge. What he did do was
rule against any party that was wrong, whether that was the D.A. or the
Board of Supervisors or economic powers; and when a judge does that, he
***Place hairline rule here***
Silver was hard on white-collar criminals, and, Jones recalled, “He had a visceral hatred of violence from his years in Vietnam.” Violence against women particularly angered him.
Jones recalled one case when a woman, crying, appeared before him pleading for her husband, who had beaten her several times. This time, he had fired a gun at her and missed.
“Silver’s face went scarlet with rage,” said Jones. “Speaking very slowly, his voice rising, he reminded her of the past pattern, and then shouted at her: ‘One of these days we will find your body in the gutter! Get out of my courtroom! Get out!’ The terrified woman fled, and the packed courtroom sat in stunned silence. Silver then proceeded to impose the state prison term he had already decided on.”
Although some considered Silver arrogant, attorney Horan offered a different perspective: “He was self-confident, but I wouldn’t call it arrogance. Silver had high expectations of what lawyers ought to do, and he held those standards for himself and imposed them on lawyers who were practicing before him.”
Attorney Richard Rosen put it this way: “Silver demanded more than other judges. And the only reason he got away with it, without everyone hating him, was that he was most demanding of himself. He was always prepared. He read everything you submitted, and then he did his own research. He put his brains and his heart into it, and he had plenty of both.”
Silver helped found the Monterey College of Law, then spent many years on its Board of Trustees.
Attorney Joel Franklin, former dean of the law school, said Silver “has a serious intensity for learning, academic pursuits and an understanding of how the law works in our society. Judge Silver imbued the law school with those kinds of standards.”
Superior Court Judge John Phillips, former assistant district attorney in Monterey County, first knew Silver as an outspoken defense attorney. The two had their clashes before Phillips’ appointment to the bench by Gov. George Deukmejian in 1984.
Over nearly two decades, the former foes developed a mutual respect and friendship. At a retirement dinner for Silver in 2002, Phillips praised Silver.
“In some ways, once you are on the bench, philosophies like liberal or conservative kind of goes by the wayside,” Phillips said in an interview. “The thing that really matters is how judges work together as a team and pull their load. Richard was courageous in his cases and he was very, very hard working. You could always rely on him.”
What was worst about being a judge? Silver paused a full 30 seconds before listing three things:
“There’s no joy in punishing people. It’s a necessary part of our society, but there’s no joy in it.
“On the civil side, in the last years, there was so much administration and processing.
“It was isolating from a personal point of view. It was very difficult to maintain social relations.”
The best aspect was “being able to be a positive influence in the community. I have an abiding and overwhelming respect for our justice system, not withstanding its frailties. I believe it is tried and true.”
Silver looks back fondly on his years on the bench:
“It gave me an opportunity to directly assist in bringing life to the law and law to the people; to demonstrate that a system based on rules, precedent, compassion and reason can achieve justice and just resolutions to problems, and that respect for the law is not something that is ordained but is earned. As a judge I made rulings and issued decisions that carried with them the force of law and government… Those decisions not only affected the parties but had ripple effects within the community and helped to guide the future.”