Judicial Profile: Mark Simons

Justice Mark Simons listened intently as a deputy AG made the case to disqualify a tow truck driver from the California Highway Patrol's rotation system. The man lost his spot by pleading no contest to a misdemeanor assault charge, which violated the state Vehicle Code. Simons suddenly stopped her, pointing out that one section of the code says a driver can be disqualified if convicted of a crime, while another requires it to be a felony. It was a classic gotcha moment -- and classic Simons.

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COURT: First District Court of Appeal APPOINTED: 2001, by Gov. Gray Davis DATE OF BIRTH: Jan. 3, 1946 LAW SCHOOL: University of Chicago Law School, 1970 PREVIOUS JUDICIAL EXPERIENCE: Contra Costa County Superior Court Justice Mark Simons listened intently during oral arguments in mid-December as a deputy attorney general made the case that a tow truck driver should be disqualified from the California Highway Patrol’s rotation system. The man had lost his spot, she insisted in San Francisco’s First District Court of Appeal, by pleading no contest to a misdemeanor assault charge. That put him in violation of the state Vehicle Code. Simons suddenly stopped her. One section of the Vehicle Code says a driver can be disqualified if convicted of a crime, he pointed out, while another section requires it to be a felony. “Doesn’t that suggest a discrepancy that creates an ambiguity?” he asked. Fumbling for an answer, the deputy AG admitted being unfamiliar with the code section cited by Simons before adding that she would be more than happy to provide further briefing post-argument. It was a classic gotcha moment — the kind that Simons is more than able to produce unexpectedly and effectively. “He gets right to the issue,” says Contra Costa County Superior Court Judge Lois Haight, who’s known Simons for a decade. “There’s no hedging around.” Not even off the bench. Just ask retired Sacramento County Superior Court Judge Michael Ullman. On Ullman’s first day at new judges’ orientation back in the early ’80s, Simons — who was teaching a class on felony preliminary hearings — brought out that Ullman had just spent several years as a lawyer for the state Legislature. “So he spent most of the time pimping me about all the crazy laws the judges have to deal with. That’s how I met him,” Ullman fondly recalled. “I had a sense of humor about it,” he said. “I knew what the Legislature had done to the judges — passing laws with intentional ambiguities or laws that just didn’t do anything.” Simons, 58, was confirmed for the First District two years ago, after having served on the Contra Costa County municipal and superior court benches since 1980. “He could be the only Jerry Brown appointee to the bench who was a public defender and who was elevated to the appellate court by a Republican governor,” Ullman said. Simons, whose father was a paper-products salesman and mother a high school English teacher, was the first lawyer in his family. A native New Yorker, he went west and graduated in 1970 from the University of Chicago Law School. “It seemed like a wonderful way to spend your day,” he said recently. “And there are so many different things you can do as a lawyer.” Simons started life in the law in 1971 as an $18,000-a-year associate at what’s now Cooley Godward doing mostly transactional work. But he took a $6,000 pay cut in 1973 to join the Contra Costa County public defender’s office — mostly to have a chance to try cases. “Growing up, in my mind,” he said, “that’s what lawyers did — trials.” But as much as Simons loved lawyering, he was lured to the bench only seven years later. And he was a star right away. “He is an outstanding jurist,” Judge Haight said. “He is not only smart, he is very witty. He brings a tremendous human element to the bench.” More importantly to Bob Kochly, who’s now the district attorney of Contra Costa County, Simons brought no defense bias to the bench. “He didn’t always rule in our favor, but [the decisions] were always so well thought out, it was difficult to argue with his logic,” Kochly said. “If you canvass the other side, you’d find that they ended up feeling much more consternation than we were,” he added. “The good part about Mark was that, having been a PD, he had heard all the excuses before and he knew which ones were legitimate and which were baloney.” Simons said he loves the appellate bench, but believes trial judges have a much harder life. It’s a “real premium” for a trial judge to have a quick take on issues, he said, but “a quick take is not something that’s valued here, and could get in the way.” Simons advises lawyers coming before the appeal courts to answer the justices’ questions, follow the presiding justices’ guidance on issues to discuss and not repeat the arguments laid out in briefs. “It doesn’t advance the ball very far,” he said, “if they are summarizing the arguments they wrote out.” Simons is the author of two books — 1987′s “California Preliminary Examinations and 995 Benchbook” and 1998′s “California Evidence.” Simons said the latter was developed out of his own teaching materials — and it’s his most popular book. “When a trial judge really wants to reach out and get the answer and get it now,” fellow First District Justice Carol Corrigan said, “Mark’s book is the book.” Corrigan and Simons teach evidence together at the annual judges’ school — officially known as the B.E. Witkin Judicial College of California. The two have become legendary as the Frick and Frack comedy team of judicial education, but the work is serious, and Simons — a former dean of judges’ school — is renowned as a first-rate teacher. Sacramento’s Ullman called Simons his role model for taking up teaching as well. “I remember being tied down to notes and I was almost reading them,” he said. “He got up and did his thing and put his notes down and never looked at them. I got inspired by him.” Simons’ personal side shows in a story by Corrigan. She had to testify in a trial in Stockton a few years back, and was dreading it, but Simons offered to travel with her. “He devoted an entire day just accompanying me and sitting through this interminable hearing,” she said. “He knew that it was going to be a difficult experience for me and he just absolutely wanted to buck me up.” On the ride home, Simons, in his own sly way, let Corrigan know that he felt less than safe with her at the wheel. “He said, ‘It’s not that you drive fast,’” Corrigan recalled. “‘It’s just that you drive faster than the people in front of you.’” You can order past judicial profiles of more than 100 Bay Area judges at www.therecorder.com/ profiles.html or by calling 415-749-5523.

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