Judges and Judiciary
Jun. 20, 2002
Gay Judge, Former Priest Believes in Being Himself
SAN JOSE - When Randolf Rice's 13-year-old son, Pasha, learned the San Jose Mercury News was going to run a story about Rice's appointment to the Santa Clara County Superior Court, he asked his father if it was necessary for the newspaper to report that Rice is gay.
Randolf James Rice
Judge, Santa Clara Superior Court
Career Highlights: Appointed to the superior court by Gov. Gray Davis, Oct. 15, 2001; partner, Skjerven, Morrill, MacPherson, 1998-2001; co-managing partner, Genesis Law Group, 1996-98; partner, Pillsbury Madison & Sutro, 1986-95 (managing partner, San Jose office, 1991-95); president, Santa Clara County Bar Association, 1995; general counsel, Episcopal Diocese of El Camino Real, 1994-2001; ordained Episcopal priest, 1973.
Law School: Hastings College of the Law, 1978
Age: 54
"I've spent a lot of years being honest and open about who I am in order to help other people be honest and open about who they are," Rice recalls telling his son during the episode last fall. "I'm proud about being the first gay judge appointed in Santa Clara County - that's the whole point. So, yes, it has to appear in the paper."
Rice, 54, was sympathetic to his son's concern about privacy. But long before he was appointed to the court, where he handles misdemeanor cases, Rice had determined to be open about being himself.
Twenty-nine years ago, after attending Harvard University's Divinity School and graduating from Berkeley's Graduate Theological Union, Rice was a newly ordained priest at Calvary Episcopal Church in Santa Cruz.
It was at about the same time that he realized he was gay. He told his bishop, who refused to accept Rice as a priest "because it would have meant he was endorsing an unacceptable lifestyle," Rice said.
Rice decided to hedge his bets by pursuing a legal career in San Francisco. Hoping he would renounce his homosexuality and stay with the church, the bishop cut a deal with Rice.
He transferred him to Christ Episcopal Church Sei Ko Kai, a congregation in San Francisco's Japantown. There, Rice could continue his church ministry as he simultaneously pursued a law degree at Hastings College of the Law.
"It wouldn't be a problem to be gay [and a priest] if I didn't make a public issue of it," Rice said of the transfer. "I was supposed to not create a scandal, but I wanted to be totally open and honest about who I was."
In 1978, Rice left the priesthood and joined Pillsbury Madison & Sutro in San Francisco.
"I wouldn't be happy with duplicity," Rice said. "Prejudice against gay people is one of the last acceptable forms of prejudice."
Rice worked at Pillsbury for 17 years, serving as managing partner of the firm's San Jose office from 1991 to 1995. He had worked as a partner at Skjerven, Morrill, MacPherson in San Jose for three years when Gov. Gray Davis appointed him to the bench Oct. 15, 2001.
As an attorney, Rice litigated copyright and software licensing disputes, complex securities matters, wrongful termination and race and age discrimination cases.
In his most important case, he successfully defended Internet service provider Netcom On-line Communication Services Inc., against a copyright claim by the Church of Scientology. Religious Technology Center v. Netcom On-line Communication Services Inc., C-95-20091 RMW.
Decided in California's Northern District, the matter was the first to address copyright issues in cyberspace. Elements of the case were codified in the federal 1998 Digital Millennium Copyright Act, which, among other features, set limitations on the liability of online service providers for copyright infringement.
The case centered on Dennis Erlich, who in his 14 years as a member of the Church of Scientology had been trained to provide counseling, known in the church as "auditing." Erlich had access to confidential, high-level Scientology documents, some of which were copyrighted by the church's founder, L. Ron Hubbard.
Disillusioned with Scientology, Erlich left the church in 1982. He became a debunker of Scientology, posting church material online, and was sued by the church in 1995 for alleged infringement of its copyrights. By extension, the church alleged, his Internet service provider, Netcom, was guilty of direct infringement.
Rice successfully argued that Netcom was no different than telephone companies, which are not held responsible for the content of facsimiles transmitted over telephone wires. However, U.S. District Judge Ronald M. Whyte required Netcom to block certain Web pages containing copyrighted Scientology material. Broader versions of his rulings were integrated into the Digital Millennium Copyright Act as a "notice and takedown" procedure.
The case "changed the whole complexion of how ISPs had to think about their responsibility" said Helena Kobrin, an attorney who represented the church in the case.
The religious aspect of the case made it particularly compelling to Rice. He said he was fascinated by the documents involved, which the judge ordered him to keep under lock and key in his desk drawer.
"I found them to be strange, very different than any other religious group I had ever come in contact with," Rice recalled. "[The Scientologists'] cosmology was not Earth-centered. The history they were discussing included planets and histories that were not limited to Earth's history."
These days, Rice, wearing his signature bow ties, runs a calendar filled with cases far different from the complicated, high-stakes matters he handled as an attorney. Still, he said, he feels like he has "died and gone to heaven" in the new job.
In misdemeanor cases, "the people you're dealing with are real people," Rice said. Whereas intellectual property cases could feel abstract at times, Rice said now he affects people's lives more directly as a judge. The job "gives you the immediate feedback that you're making a difference," he said.
Attorneys who practice before Rice say his enthusiasm and commitment to the orderly application of the justice system shows in the courtroom.
His concern for children and adolescents, and for the proper administration of justice, is manifested in his enthusiasm for a new Santa Clara County program that brings actual misdemeanor trials to local high schools.
Students learn first-hand the penalties meted out for drunken driving. The program is "an example of things the judicial system can do in conjunction with other county agencies to deter crime before it happens," he said.
Randy Moore is a trial and criminal defense lawyer in San Jose who specializes in drunken driving and medical marijuana cases.
Rice "has a fresh approach to the issues that come before him rather than a knee-jerk reaction to the situation - which unfortunately too much of the time is what happens," Moore said. "Whether he rules in my favor or not, I know that he has read the paperwork and he knows his evidence."
Rice understands the law, and his sentencing is "middle of the road," Moore added. "He will take the time to give his analysis, to make sure his ruling is his ruling, not what may be in vogue or what may be a traditional ruling."
Santa Clara County deputy public defender Ben Galloway recalled a recent vehicular manslaughter case tried in Rice's courtroom.
In their victim impact testimonies, members of the victim's family issued emotional pleas for Rice to issue the most severe sentence allowed under the relevant statutes.
"Rice was clearly moved," by the family's pleas, Galloway said.
Rice told the victim's family how his own brother had been struck by a negligent driver while walking in a crosswalk. When Rice's brother came out of a coma nine months later he was brain-damaged. He died later of a seizure.
But in the case before him, Rice said, there was "no intentional misconduct in the record by the driver." The victim was helping a driver of a broken-down car on the freeway when the defendant suffered a muscle spasm that caused him to lose control of his car and strike and kill the victim, he said.
Rice issued a sentence that was less severe than what the family wanted but which he felt was appropriate under the circumstances.
"I told [the victim's family] that I understand the pain they are going through, and that punishing the defendant is not going to bring the loved one back," he said.
Santa Clara County Deputy District Attorney Fred Thiagarajah argued his first jury trial before Rice. He won the case, although his nervousness was obvious to everyone, Thiagarajah said recently.
Afterward, Rice took him aside and suggested that next time he give jurors a chance to get to know him better by asking more questions during voir dire.
"It was comforting because it showed he cared about attorneys in his courtroom, both from the district attorney's office and the defense side," Thiagarajah said.
Lawyers consider Rice a likely candidate for a promotion. He had wanted to be a judge for some time. He said he applied for state appointments but colleagues warned him his homosexuality would be a bar as long as Republicans George Deukmejian and Pete Wilson served as governor - a period that lasted from 1983 to 1999. During Bill Clinton's presidency, Rice said, he applied for a federal judgeship but was never invited for an interview.
In 1984, when he moved back to San Jose from San Francisco, he asked the local Anglican bishop - not the same man who had sent him to San Francisco in the 1970s - to write a letter in support of his and his partner's effort to adopt foreign-born children.
Initially reluctant, but well aware of Rice's accomplishments, the bishop wrote the letter, enabling Rice and Klaus Merrell, his partner of 28 years, to become parents. Their first son, Nicolas, born in Honduras, is now 17. Pasha, their second son, was born in the former Soviet Union.
Rice said he enjoys the additional time he spends at home, now that he doesn't work for a law firm. He said he probably will apply for a juvenile court appointment within the next year, but he no longer aspires to a federal appointment.
Rice also asked the bishop to permit him to preach again. The bishop agreed. Rice can be heard preaching, on occasion, at Trinity Episcopal Cathedral in San Jose where he is an associate priest.
Rice says the bishop's reaction to his requests is an example of why gay people should be open about their sexuality.
"You can hate a group anonymously," Rice said. "But it's very hard to be hateful or prejudiced toward an individual you know."
Recent cases handled by Rice and the lawyers involved:
• People v. Fernandez, CC074357
Prosecution: Niranjan (Fred) Thiagarajah, Santa Clara County deputy district attorney
Defense: Randy Moore, Law Offices of Randy Moore
•People v. Hemeon, CC061002
Prosecution: Lynn Knapp, Santa Clara County deputy district attorney
Defense: Randy Moore, Law Offices of Randy Moore
• People v. Cleary, CC132164
Prosecution: Lynn Knapp, Santa Clara County deputy district attorney
Defense: Randy Moore, Law Offices of Randy Moore
• People v. Gonzalez, CC103346
Prosecution: Niranjan (Fred) Thiagarajah, Santa Clara County deputy district attorney
Defense: Brian Clubb, Santa Clara County deputy public defender
• People v. Williams, CC086067 Prosecution: Prosecution: Niranjan (Fred) Thiagarajah
Defense: Clinton Morales, Santa Clara County deputy public defender
Joel Rosenblatt
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