News
Judges and Judiciary
Jul. 19, 2002
Justice With a Heart
SAN FRANCISCO - It wouldn't do either justice justice to call James Marchiano the ghost of Gary Strankman. But it is fair to say that for the past 14 years, Marchiano, 59, has been quietly following in Strankman's footsteps, building an almost identical rsum along the way.
PROFILE
James J. Marchiano
Presiding Justice
1st District Court of Appeal
Division 1
Career Highlights: Appointed to 1st DCA, 1998; Contra Costa Superior Court, 1988-98; partner, Crosby, Heafey, Roach & May, 1978-88; Bledsoe, Smith, Cathcart, Boyd & Eliot 1970-78.
Law school: Boalt Hall, 1969
Age: 59
By Peter Blumberg
Daily Journal Staff Writer
SAN FRANCISCO - It wouldn't do either justice justice to call James Marchiano the ghost of Gary Strankman.
But it is fair to say that for the past 14 years, Marchiano, 59, has been quietly following in Strankman's footsteps, building an almost identical résumé along the way.
In 1988, when Strankman was elevated to the 1st District Court of Appeal, Marchiano took over his seat at Contra Costa County Superior Court.
A decade later, after Strankman had served for five years as presiding justice of Division 1, Gov. Pete Wilson picked Marchiano to be an associate justice on that panel.
And last year, completing the cycle of coincidence, when Strankman retired to take a job as a private judge, Marchiano became the new Division 1 presiding justice.
It shouldn't come as a surprise that the two jurists speak highly of each other.
Marchiano said he was "very fortunate to start under Strankman," whom he referred to as "a remarkable leader."
"Our personalities seemed to fit, and the chemistry was right," he said.
Strankman is equally effusive in his praise of Marchiano.
"It's obvious to everyone that Jim is an excellent lawyer and legal tactician," he said. "For those of us who have served with him, what we know is that he has a very big heart. He cares about the staff and the people who work in the court as much as any judge with whom I have ever served."
Indeed, during an interview, Marchiano spoke fondly of his "talented staff" and noted it's customary in his division to throw elaborate office parties to celebrate staff birthdays.
Perhaps even more telling is that Marchiano passed up the opportunity to take over Strankman's old office, historically the most significant room in the state building at 350 McAllister St. because it served decades ago as the governor's office in San Francisco.
Instead, Marchiano continues to occupy the annex that housed the governor's secretary so that Division One's newest justice, Sandra Marguiles, could have the executive suite for herself.
Marchiano said the administrative aspect of his role as presiding justice "was an easy job to apply for" because the division ran so smoothly during Strankman's tenure.
"I try to lead by example," he said. "I try to get in early and stay until the job is done."
After four years on the 1st DCA, Marchiano still finds the work of deciding cases and drafting opinions to be intellectually stimulating.
Of the approximately 20 published opinions he has written, Marchiano said one of the toughest involved a battle between local and state governments over billions of dollars of property tax revenue. In a November 2000 opinion, Marchiano sided with the state, holding that Sacramento lawmakers need not reimburse cities and counties for shifting tax revenues to public schools. County of Sonoma v. Commission on State Mandates, 83 Cal.App.4th 1264
Reflecting on the case, Marchiano said "the local entities had a very appealing argument as to why they should win," but that his legal analysis forced him to overturn the trial judge who had ruled in their favor.
"Had I been a legislator, I would have done it differently," he added.
Likewise, Marchiano said it wasn't an easy decision to remove from the fall 1999 San Francisco ballot an initiative that aimed to repeal voter-approved funding for a new football stadium for the 49ers. But he concluded the First Amendment does not protect ballot measures that use inaccurate and misleading information to garner votes.
In retrospect, Marchiano said he's glad he wrote the opinion narrowly, because he would not want to encourage courts to enjoin referendums.
"This was an unusual fact situation where there was evidence of deceit," he said.
Marchiano said he enjoys cases that give him an opportunity to do research, such as Drouet v. Superior Court, 86 Cal.App.4th 1237, in which he ruled last year that San Francisco tenants may not claim unfair retaliation against landlords who evict them in order to take rental properties off the market.
Marchiano said it was important for him to understand the historical context of the 1985 Ellis Act, which allows landlords to cease renting residential properties without penalty, so that he could reconcile "the tension between property owners and the rights of tenants."
More recently, Marchiano brushed up on the history of San Francisco cable cars to settle a controversy over the end-of-the-line turntables that have been blamed by operators for grave injuries. He ruled against the injured workers, finding that the statute of limitations barred them from suing the contractors who designed the turntables. Robinson v. Chin & Hensolt, 2002 DJDAR 5696
Marchiano's opinion opens with a snippet of Tony Bennett about "the pretty cable cars that climb halfway to the stars," and ends seven pages later with a touch of levity.
"We ring the conductor's bells three times for the signal to bring this case to a stop - hopefully, in the best San Francisco cable car tradition, a smooth one," he wrote.
In other significant decisions:
•Marchiano blocked a Sonoma County family from using an 1865 subdivision map to parcel out a swath of rural property. In October 2001, he concluded that because the crude map predates the state's first recognized subdivision law, the map did not create legally recognized parcels that can be sold, leased or financed. The California Supreme Court has granted review. Gardner v. County of Sonoma, A093130.
•Marchiano ruled that a doctor cannot be held liable for artificially impregnating a woman at her request and not telling her husband. While criticizing "alleged deceptive, hurtful behavior," Marchiano concluded in Shin v. Kong, 80 Cal.App.4th 498 (2000), that the plaintiff failed to make a case allowing for recovery of damages.
•Marchiano reinstated a family's lawsuit against the city of Ukiah alleging that a deadly house fire ignited by unattended candles is the city's fault because it cut the family's power supply a day earlier without proper notice. Marchiano's ruling said the city could be held to blame for the blaze, which killed four children, if plaintiffs can show at trial that the unannounced power shutoff was a "substantial factor" in the family's use of candles. Kuns v. City of Ukiah, 79 Cal.App.4th 899 (2000)
Born in Detroit and reared in Concord, Marchiano was raised by a father who drove a bread truck. Both his parents emigrated from Italy.
He studied to be a priest at St. Patrick's College Seminary in Menlo Park, where he earned his undergraduate degree in 1965. He went on to study law at Boalt Hall, graduating in 1969.
After earning his law degree, Marchiano worked for Bledsoe, Smith, Cathcart, Johnson & Rogers, a civil trial firm in San Francisco. From 1978 to 1988, he was a partner at Crosby, Heafey, Roach & May in Oakland, specializing in medical malpractice, as well as construction defects, bad-faith litigation and general insurance defense cases.
Despite being a civil litigator and a Democrat, he won his first appointment to the bench, on the Contra Costa County Superior Court, from Republican Gov. George Deukmejian in 1988.
In 1998, Wilson elevated him to the 1st District and last year, just before Christmas, Gov. Gray Davis named him presiding justice of Division One.
Off the bench, Marchiano serves on a committee of federal and state jurists and administrators who work on issues of mutual concern such as jury selection.
Marchiano also serves on a jury improvement task force under the auspices of the state Judicial Council. The task force's biggest accomplishment to date is the one day-one trial system that has been implemented statewide to minimize disruptions in the lives of potential jurors.
In his spare time, Marchiano enjoys reading history, playing racquetball and cycling.
Here are some of Marchiano's recent cases and the attorneys involved:
San Francisco Forty-Niners v. Nishioka, 75 Cal.App.4th 637 (1999)
Plaintiff: John E. Mueller, Mill Valley
Defendant: Charles H. Bell, Sacramento
Kuns v. City of Ukiah, 79 Cal.App.4th 899 (2000)
Plaintiff: Thomas F. Johnson, Ukiah
Defendant: Joseph A. Piasta, Santa Rosa
Citicorp North America v. Franchise Tax Board, 83 Cal.App.4th 1403
Plaintiff: Eric Cofill, Sacramento
Defendant: David Lew, Oakland
Gardner v. County of Sonoma, 92 Cal.App.4th 1055
Plaintiff: Jessica Flores, Santa Rosa
Defendant: Sue A. Gallagher, Santa Rosa
Zee Medical Distributors v. Zee Medical Inc., 80 Cal.App.4th 1 (1999)
Plaintiff: Ralph Sutton, San Francisco
Defendant: Charles Treat, San Francisco
James J. Marchiano
Presiding Justice
1st District Court of Appeal
Division 1
Career Highlights: Appointed to 1st DCA, 1998; Contra Costa Superior Court, 1988-98; partner, Crosby, Heafey, Roach & May, 1978-88; Bledsoe, Smith, Cathcart, Boyd & Eliot 1970-78.
Law school: Boalt Hall, 1969
Age: 59
But it is fair to say that for the past 14 years, Marchiano, 59, has been quietly following in Strankman's footsteps, building an almost identical résumé along the way.
In 1988, when Strankman was elevated to the 1st District Court of Appeal, Marchiano took over his seat at Contra Costa County Superior Court.
A decade later, after Strankman had served for five years as presiding justice of Division 1, Gov. Pete Wilson picked Marchiano to be an associate justice on that panel.
And last year, completing the cycle of coincidence, when Strankman retired to take a job as a private judge, Marchiano became the new Division 1 presiding justice.
It shouldn't come as a surprise that the two jurists speak highly of each other.
Marchiano said he was "very fortunate to start under Strankman," whom he referred to as "a remarkable leader."
"Our personalities seemed to fit, and the chemistry was right," he said.
Strankman is equally effusive in his praise of Marchiano.
"It's obvious to everyone that Jim is an excellent lawyer and legal tactician," he said. "For those of us who have served with him, what we know is that he has a very big heart. He cares about the staff and the people who work in the court as much as any judge with whom I have ever served."
Indeed, during an interview, Marchiano spoke fondly of his "talented staff" and noted it's customary in his division to throw elaborate office parties to celebrate staff birthdays.
Perhaps even more telling is that Marchiano passed up the opportunity to take over Strankman's old office, historically the most significant room in the state building at 350 McAllister St. because it served decades ago as the governor's office in San Francisco.
Instead, Marchiano continues to occupy the annex that housed the governor's secretary so that Division One's newest justice, Sandra Marguiles, could have the executive suite for herself.
Marchiano said the administrative aspect of his role as presiding justice "was an easy job to apply for" because the division ran so smoothly during Strankman's tenure.
"I try to lead by example," he said. "I try to get in early and stay until the job is done."
After four years on the 1st DCA, Marchiano still finds the work of deciding cases and drafting opinions to be intellectually stimulating.
Of the approximately 20 published opinions he has written, Marchiano said one of the toughest involved a battle between local and state governments over billions of dollars of property tax revenue. In a November 2000 opinion, Marchiano sided with the state, holding that Sacramento lawmakers need not reimburse cities and counties for shifting tax revenues to public schools. County of Sonoma v. Commission on State Mandates, 83 Cal.App.4th 1264
Reflecting on the case, Marchiano said "the local entities had a very appealing argument as to why they should win," but that his legal analysis forced him to overturn the trial judge who had ruled in their favor.
"Had I been a legislator, I would have done it differently," he added.
Likewise, Marchiano said it wasn't an easy decision to remove from the fall 1999 San Francisco ballot an initiative that aimed to repeal voter-approved funding for a new football stadium for the 49ers. But he concluded the First Amendment does not protect ballot measures that use inaccurate and misleading information to garner votes.
In retrospect, Marchiano said he's glad he wrote the opinion narrowly, because he would not want to encourage courts to enjoin referendums.
"This was an unusual fact situation where there was evidence of deceit," he said.
Marchiano said he enjoys cases that give him an opportunity to do research, such as Drouet v. Superior Court, 86 Cal.App.4th 1237, in which he ruled last year that San Francisco tenants may not claim unfair retaliation against landlords who evict them in order to take rental properties off the market.
Marchiano said it was important for him to understand the historical context of the 1985 Ellis Act, which allows landlords to cease renting residential properties without penalty, so that he could reconcile "the tension between property owners and the rights of tenants."
More recently, Marchiano brushed up on the history of San Francisco cable cars to settle a controversy over the end-of-the-line turntables that have been blamed by operators for grave injuries. He ruled against the injured workers, finding that the statute of limitations barred them from suing the contractors who designed the turntables. Robinson v. Chin & Hensolt, 2002 DJDAR 5696
Marchiano's opinion opens with a snippet of Tony Bennett about "the pretty cable cars that climb halfway to the stars," and ends seven pages later with a touch of levity.
"We ring the conductor's bells three times for the signal to bring this case to a stop - hopefully, in the best San Francisco cable car tradition, a smooth one," he wrote.
In other significant decisions:
•Marchiano blocked a Sonoma County family from using an 1865 subdivision map to parcel out a swath of rural property. In October 2001, he concluded that because the crude map predates the state's first recognized subdivision law, the map did not create legally recognized parcels that can be sold, leased or financed. The California Supreme Court has granted review. Gardner v. County of Sonoma, A093130.
•Marchiano ruled that a doctor cannot be held liable for artificially impregnating a woman at her request and not telling her husband. While criticizing "alleged deceptive, hurtful behavior," Marchiano concluded in Shin v. Kong, 80 Cal.App.4th 498 (2000), that the plaintiff failed to make a case allowing for recovery of damages.
•Marchiano reinstated a family's lawsuit against the city of Ukiah alleging that a deadly house fire ignited by unattended candles is the city's fault because it cut the family's power supply a day earlier without proper notice. Marchiano's ruling said the city could be held to blame for the blaze, which killed four children, if plaintiffs can show at trial that the unannounced power shutoff was a "substantial factor" in the family's use of candles. Kuns v. City of Ukiah, 79 Cal.App.4th 899 (2000)
Born in Detroit and reared in Concord, Marchiano was raised by a father who drove a bread truck. Both his parents emigrated from Italy.
He studied to be a priest at St. Patrick's College Seminary in Menlo Park, where he earned his undergraduate degree in 1965. He went on to study law at Boalt Hall, graduating in 1969.
After earning his law degree, Marchiano worked for Bledsoe, Smith, Cathcart, Johnson & Rogers, a civil trial firm in San Francisco. From 1978 to 1988, he was a partner at Crosby, Heafey, Roach & May in Oakland, specializing in medical malpractice, as well as construction defects, bad-faith litigation and general insurance defense cases.
Despite being a civil litigator and a Democrat, he won his first appointment to the bench, on the Contra Costa County Superior Court, from Republican Gov. George Deukmejian in 1988.
In 1998, Wilson elevated him to the 1st District and last year, just before Christmas, Gov. Gray Davis named him presiding justice of Division One.
Off the bench, Marchiano serves on a committee of federal and state jurists and administrators who work on issues of mutual concern such as jury selection.
Marchiano also serves on a jury improvement task force under the auspices of the state Judicial Council. The task force's biggest accomplishment to date is the one day-one trial system that has been implemented statewide to minimize disruptions in the lives of potential jurors.
In his spare time, Marchiano enjoys reading history, playing racquetball and cycling.
Here are some of Marchiano's recent cases and the attorneys involved:
San Francisco Forty-Niners v. Nishioka, 75 Cal.App.4th 637 (1999)
Plaintiff: John E. Mueller, Mill Valley
Defendant: Charles H. Bell, Sacramento
Kuns v. City of Ukiah, 79 Cal.App.4th 899 (2000)
Plaintiff: Thomas F. Johnson, Ukiah
Defendant: Joseph A. Piasta, Santa Rosa
Citicorp North America v. Franchise Tax Board, 83 Cal.App.4th 1403
Plaintiff: Eric Cofill, Sacramento
Defendant: David Lew, Oakland
Gardner v. County of Sonoma, 92 Cal.App.4th 1055
Plaintiff: Jessica Flores, Santa Rosa
Defendant: Sue A. Gallagher, Santa Rosa
Zee Medical Distributors v. Zee Medical Inc., 80 Cal.App.4th 1 (1999)
Plaintiff: Ralph Sutton, San Francisco
Defendant: Charles Treat, San Francisco
#298459
Peter Blumberg
Daily Journal Staff Writer
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