Judicial Profile: Conrad Rushing

When Presiding Justice Conrad Rushing joined the Sixth District Court of Appeal, attorneys were eager to see if the first appointment by a Democratic governor would stir up the conservative bench. After little more than a year, the former Santa Clara County Superior Court judge and lone Democrat on the court is at the center of a quiet coup.

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COURT:Sixth District Court of Appeal APPOINTED:Jan. 25, 2002 and elevated to PJ Jan. 21, 2003 DATE OF BIRTH:Jan. 7, 1937 LAW SCHOOL:Boalt Hall School of Law PREVIOUS JUDICIAL EXPERIENCE:Santa Clara County Superior Court, appointed by Gov. Brown April 7, 1978. When Presiding Justice Conrad Rushing joined the Sixth District Court of Appeal, attorneys were eager to see if the first appointment by a Democratic governor would stir up the conservative bench. After little more than a year, the former Santa Clara County Superior Court judge and lone Democrat on the court is at the center of a quiet coup. Rushing is writing dissents — 17 since he joined the court. Criminal appellate attorneys say he’s also signing onto reversals (two in April alone). He’s funding experts for criminal habeas petitions, which some attorneys say is a first in the history of the Sixth District. As administrative head of the court, he’s tackling backlogs and cracking down on extensions. He’s increased the number of panels from two to four, so attorneys now see every possible configuration of the six-justice court. “He’s making a difference in terms of the care in which the court reviews criminal convictions,” said Michael Kresser, director of the Sixth District Appellate Project. Civil appellate attorneys say that while Rushing’s influence in business and family disputes is more subtle, his work with complex litigation on the trial bench makes him a welcome addition to Silicon Valley’s appellate court. “I have always thought he was one of the best judges and most intelligent judges on the bench when he was a trial judge, and was happy when he was appointed to the Sixth,” said San Jose Deputy City Attorney Joseph DiCiuccio. Since joining the bench in January 2002, Rushing has dissented in 11 criminal appeals and six civil cases, disagreeing with his colleagues about everything from restricting card room business hours without an administrative hearing to classifying angst-ridden teenage poetry as a terrorist threat. Defense attorneys say Rushing’s dissents are the first signs of life on the Sixth District since it was created nearly two decades ago. “Dissents are healthy,” Rushing says of his propensity to publicly disagree with his colleagues. “Certainly, for our Supreme Court and the U.S. Supreme Court, part of their vitality comes from dissenting opinions.” Kresser, whose teenage client’s conviction for threatening poetry was upheld by the Sixth District, said Rushing’s dissent could lead the state Supreme Court to reverse in In re George T ., S111780. “I think he got it right,” Kresser said about Rushing’s dissent, which compared George T.’s dark poetry to the likes of Sylvia Plath and Allen Ginsberg. “His dissent was very well written, very persuasive, and it was probably helpful in having the California Supreme Court decide to review the case.” In an unpublished opinion, In re Wilson,H021472 ,Rushing took on the Three Strikes law. He dissented from Justices William Wunderlich and Patricia Bamattre-Manoukian’s decision to affirm a 25-year-to-life sentence for a three-time drunken driver. “Wilson’s alcoholism does not excuse his conduct. So let us send him to prison because he must be punished,” Rushing wrote. “But we should not send him away for 25 years to life with no possibility of parole until a 25-year term is served. Such a sentence is unjust under any understanding of the word.” Civil attorneys say Rushing isn’t changing the tenor of the court’s civil rulings, but he is changing how the court is run. “He’s a very intelligent judge and for that reason a very welcome addition,” said San Jose civil attorney Russell Hanlon. “I don’t know if there is going to be any change of direction because Judge Rushing is on the court.” Rushing said one of his top priorities is to reduce the court’s backlog, so he’s granting fewer extensions. “I am trying to shorten the amount of time” cases take, Rushing said. “I do realize that’s a change of course. One of my goals is to make the calendar current.” Both civil and criminal attorneys agree he is also adding some energy to oral arguments. “Certainly when it comes to oral arguments, he comes well prepared. He wants to engage the lawyers in questioning; he is prepared to asked the hard questions of people,” Kresser said. “It’s quite an improvement. The Sixth was getting a reputation that you might as well not bother with oral arguments. The justices just sit there and are totally uninvolved.” The knock on Rushing is that he comes across as arrogant. “There may be a fine line between competence and arrogance,” Rushing said. “If there is a hard case at the trial court like the Avant [criminal trade secrets] case was, you have to be pretty confident about your abilities to follow the case.” You can order past judicial profiles of more than 100 Bay Area judges at www.therecorder.com/profiles.htmlor by calling 415-749-5523.

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