Services Set for Retired Judge Peter Smith

Wednesday, January 23, 2019

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Services Set for Retired Judge Peter Smith

Jurist Presided Over Los Angeles Superior Court’s Juvenile Court, Supervised East District, Handled Carol Burnett’s Libel Action Against National Enquirer; Became Author of Books

By a MetNews Staff Writer

PETER S. SMITH

1933-2019

Services are slated for Feb. 2 for retired Los Angeles Superior Court Judge Peter S. Smith, who died at the age of 85 after a career that included not only service on the bench, but in ensuing years, as an arbitrator and mediator and as an author of books.

Appointed to the Superior Court at age 34 by Gov. Ronald Reagan in March 1972, he started out handling criminal cases, then went to the Juvenile Court. As presiding judge of that court in 1977-78, he opened the previously closed proceedings to the press, on condition that the minor’s name not be reported.

Former Los Angeles County District Attorney Steve Cooley recounted yesterday that as a young deputy in the 1970s, he appeared before Smith several times, noting:

“Judge Smith and several other top notch Superior Court judges had been brought in to Central Juvenile to straighten out the juvenile justice court system which was dealing with many challenges and an upsurge in violent juvenile crime. Judge Smith was an excellent bench officer—-knew the law, applied it accurately, and had great presence on the bench.”

Cooley termed Smith “a great man in many ways.”

Smith handled law and discovery in the East district (Pomona) in 1982, 1984 and 1985 and was supervising judge in that district from 1986-87.

In announcing Smith’s death in an email to colleagues, Los Angeles Superior Court Presiding Judge Kevin Brazile said Smith “was a friend and mentor to many and he will be missed by those of us who knew him and valued his friendship.”

Carol Burnett Case

The most prominent case over which Smith presided was that of Carol Burnett v. National Enquirer, in 1981. The trial is said to have been the first that was nationally televised live.

Burnett, who campaigned against alcoholism (with which both of her parents had been afflicted), sued for libel over a March 23, 1976 item implying she had been drunk in a restaurant. It alleged:

“At a Washington restaurant, a boisterous Carol Burnett had a loud argument with another diner, [then-Secretary of State] Henry Kissinger. She traipsed around the place offering everyone a bite of her dessert. But Carol really raised eyebrows when she accidentally knocked a glass of wine over one diner and started giggling instead of apologizing.”

The publication quickly admitted that the account was inaccurate.

A key ruling by Smith was that the Enquirer is a magazine, not a newspaper. That meant that it was not protected by Civil Code §48a which limits recoveries in libel actions to actual damages where there is a timely retraction but—as then worded (though subsequently broadened)—applied only where falsehoods were disseminated by “a newspaper, or...by radio broadcast.”

Appeals Court Agrees

The Court of Appeal in 1983 held that Smith “correctly determined the National Enquirer should not be deemed a newspaper for the purposes of the instant litigation” and that §48a was inapplicable to it.

The jury awarded $1.3 million in punitive damages, which Smith shaved to $750,000. That amount, the majority of this district’s Div. Two held in an opinion by then-Presiding Justice Lester Wm. Roth, was still excessive, while Justice Edwin Beach dissented as to the reduction, saying:

“Reducing an award of punitive damages from $1,300,000 to $750,000 does not seem to me to be an act of passion or prejudice. In the absence of a showing by appellant that the reduction was the result of bias by the trial court, its determination must be upheld on appeal.”

Cutting Backlog Recounted

Smith retired from the bench on Jan. 1, 1988. One week later, an article in the Los Angeles Times reflected:

“When Peter S. Smith took over as presiding judge of Pomona [branch of the] Superior Court in February, 1986, there were 1,230 civil cases awaiting trial. Most of the plaintiffs had been waiting for their day in court for five years.

“By October, 1987, the number of pending cases had dropped to 615, and half of those cases had been awaiting trial for two years or less.

“This marked decrease in the court’s backlog is credited to Smith’s controversial decision to deny most continuances.”

Smith did not shy away from controversy; in 1978, he took a rare action by a sitting judge of openly supporting a colleague’s election challenger. Smith backed a court commissioner, Virginia Chernak, in her unsuccessful bid for the judgeship held by Vaino Spencer (who went on to become a Court of Appeal presiding justice).

Municipal Court Judge

Before his appointment to the Superior Court, Smith was a judge of the Alhambra Municipal Court, from 1968-72, an appointee of Gov. George Deukmejian. He served as presiding judge in 1970.

As a Municipal Court judge, he rejected the contention by a defendant that his rights under the Fifth and Sixth Amendments were abridged because he was not allowed to have an attorney present when field sobriety tests were performed. Los Angeles Superior Court Judge James G. Whyte denied a writ, and the Court of Appeal, in the 1969 case of Whelan v. Municipal Court, affirmed in an opinion by Justice Donald Wright (later California chief justice).

After earning his law degree from Loyola in 1960, and being admitted to the State Bar on Jan. 11, 1961, Smith worked for a year as a deputy Los Angeles city attorney, then went into private practice.

He gained the Republican nomination for the Assembly in 1962 but lost in the November election.

Post-Bench Career

Smith was a private judge from 1988 to 2001. He then became an author.

Brazile said in his email that Smith “wrote three novels loosely based upon persons and characters in our local courts and communities, as well as an advice book on investing.”

The writing of one of the three books—“The Magistrates”—published in 2004, had been begun more than three decades before, when Smith was a judge of the Alhambra Municipal Court. Smith recited in the “Acknowledgements” that he completed it “during the spring and summer of 2003, sitting in a wheelchair at our home in Monterey Park” following hospitalization resulting from a staph infection incurred in December 2002 at the family’s other home in Arizona, resulting in paralysis of his legs.

Three Judges

The preface says:

“This is the story of an unlikely trio of judges who held court in the late 1960’s in a small California judicial district. One judge is a former liberal state legislator who launches his judicial career by ‘giving away the courthouse.’ The second judge is a conservative who was formerly a civil trial lawyer. The third judge is an alcoholic. She was a successful trial lawyer whose tactics and demeanor make it unlikely that she will succeed as a judge.

“The three judges are engaged in a battle for survival on two fronts. One front is their struggle to keep their heads above water because their calendars are swamped with drug cases. The other front is much more stressful. When they make controversial decisions, the judges are often assailed by politicians on the right and left. Can the judges endure the attacks and be re-elected?”

In a conclusionary note, Smith related that the three judges depicted were “entirely fictional,” adding, however, that the “various characters are composites of many people I encountered when I was a judge and lawyer.” While he did serve in a small municipal court judicial district in 1968-72, he said, “all three judges on that Court were male, married, and Republican,” descriptions not fitting the imagined characters.

Surmounting Obstacles

Doctors told Smith after the advent of his disease that he would never walk again. Yet, a year later, in 2003, he surmounted a mountain in Arizona.

That the particular climb, the website “Trip Advisor” cautions, is “not an easy task.”

In the 2014 Winter edition of “Gavel to Gavel,” the in-house magazine for Los Angeles Superior Court judges, a retired member of the court, Gregory O’Brien, said in recounting Smith’s feat:

“The view from Thumb Butte Mountain near Prescott, Arizona is spectacular and the air is clean. Ascending 600 feet up the lazy trail took him an hour longer than his previous trips, but he would not be deterred by his new leg braces. Lacking flexible feet, not to mention his entire formerly cancerous bladder and prostate—quad cane in one hand and the elbow of a friend in the other—retired Judge Peter Smith (‘Pete’ to his former colleagues), stood atop the elevation and surveyed the valley below. Considering what he had been through recently, life was good.”

O’Brien also said of Smith:

“Forgotten, perhaps, may be his innovation of the criminal pre-trial conference, which he established as a young judge in Alhambra, later copied by courts statewide. Less well-known also is the fact that at one time, Pete was the only judge in the county who tried death-penalty bench trials. The last says much about his skill and fairness as a judge. But Thumb Butte Mountain says everything about his heart as a man.”

Services on Feb. 2 for Smith, who died Jan. 12, will be held on at 11 a.m. at Pierce Brothers Turner and Stevens Mortuary at 1136 East Las Tunas Drive in San Gabriel.

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Peter S. Smith Seen As ‘Old Fashioned Judge With Great Foresight’

By ROBERT A. DUKES

(The writer is a former judge of the Los Angeles Superior Court. He served as presiding judge in 2003 and 2004.)

Pete Smith was both a mentor and friend. I first met him in the mid 1980s when I was a practicing attorney and he was a judge in Pomona. His reputation was of a no-nonsense stern judge, with little humor. In fact, I found out later it was all an act. I was the defense attorney in a felony burglary and [assault with a deadly weapon] trial with a very difficult and uncooperative client. Judge Smith was fair and able to smooth over a rough spot of an ethical dilemma created by my client insisting on testifying while I had reason to believe he was going to perjure himself.

He was an old fashioned judge with great foresight. He implemented delay reduction calendar management in Pomona before the concept was embraced by the legislature and the Judicial Council. He instilled in the Judges of the East District a work ethic which prevails to this day. “Our obligation as Judges,” he would say, “is to preside in our courtrooms each day until the work of the court is done—not just the work in your courtroom.” Judges helped each other, and did not dare leave each day until “cleared” by Judge Smith. He knew if there were other matters which need judicial hearings in other courtrooms and each judge was expected by him to help out their colleagues.

He retired after I was appointed to the Pomona Municipal Court, but before I was elevated to the Superior court and assigned to the East District. But we kept in touch. He mentored me when I was Supervising Judge. He cared about the Los Angeles Court System, and we discussed the many changes then occurring toward the end of the 1990s. He felt the loss of the Municipal Courts was a loss to the communities of judges who were involved locally. He was deeply troubled about the loss of independence of the local courts as the Chief Justice, the Judicial Council and the staff in San Francisco gained budgetary power and the relationship with the county was superseded by legislator interference in far-away Sacramento.

Although his mobility and health were severally compromised in the early 2000s, we would still meet a couple of times a month for lunch during my term as APJ and PJ. He loved the insider gossip about the issues the court had with both Sacramento and San Francisco and was free with advice of how he thought the court should conduct itself. We continued our lunches for years, and he attended the East District holiday luncheon without fail every year, until his health prevented it a few years ago.

Although he had a distinguished career as an ADR neutral (and a self-published author of several Roman à clef type courtroom/mystery novels and a how-to book on investing) he remained a friend of the Los Angeles Superior Court to the end. I visited with him shortly before my retirement at the end of October. He was in a care facility and very weak, but he still wanted to know what was going on with the court and some of the Judges with whom he served. I am going to miss him greatly.