November, 1998

Douglas Swager is the land use expert on the First District's Division One. In his three years on the appellate bench Swager has already contributed several scholarly environmental opinions, covering beach access, historic preservation and the interplay between local ballot measures and the California Environmental Quality Act.

Swager seems a fairly typical Pete Wilson appellate appointee. He has a few years' experience as a prosecutor, followed by many years of civil litigation work, and seems centrist to moderately conservative on civil issues, moderate to solidly conservative on criminal issues.

When Swager's Division One held that Three Strikes and You're Out did not deprive trial judges of their discretion to strike priors, Swager dissented, taking a harder line than his colleage, former Contra Costa DA Gary Strankman. But Swager has issued at least one unpublished opinion reversing convictions for first-degree murder due to instructional error.

On the civil side, Swager dissented from a Strankman opinion in Kransco v. American Empire Surplus Lines, 54 Cal.App.4th 963, that barred comparative fault allocations in a bad faith case. "In an appropriate case the affirmative defense of comparative bad faith has not only been recognized as available to insurers in bad faith actions," he wrote, "but is also compatible with the comparative fault scheme for allocation of damages now engrained in our legal system." Swager may be vindicated -- the California Supreme Court agreed to review the case.

Swager has not published a lot of opinions, but he has contributed to efficiency -- Division One is one of the fastest on the court in disposing of appeals. Court insiders describe him as a hard worker, often at the court by 7 a.m.

Swager is chairman of the First District's computer committee, and continues to preside occasionally over trials in Contra Costa County.