Divorces are too easy to get and sought on a whim. A divorce harms the community more than the divorcing couple, so only an elected official can decide whether a bad marriage should be dissolved. The public has a right to know any and all accusations and embarrassing details about a couple seeking divorce. A wife or husband might lie about what happened during their marriage unless they face cross-examination in open court.
That snide little handbasket of equivocation, intimidation and false assumptions didn’t come from clergy nor “til death us do part” true believers; these were arguments made by top California judges in the mid-1910s, who viewed efforts intended to lighten their workload as a threat to their authority.
ENDURING ABUSE IS GOOD FOR SOCIETY
Although almost all divorce filings in 1915 charged the husband with some form of cruelty, Sonoma County Superior Court Judges Thomas Denny and Emmet Seawell made no secret of their bias against granting divorces, which they saw as equally (or more) harmful for the community. Here are some examples of their sanctimonious moralizing:
Judge Denny: “I consider such procedure means the undermining of the morals of society.” Denny also boasted that he changed the way divorce hearings were handled in Sonoma County to make matters tougher. Instead of being quietly presided over in chambers by the court referee, he “…insisted that they be heard in open court, thinking that it might do away with some of the evils of divorce if plaintiff had to face the court.” (Note that the plaintiff was almost always the wife.) In at least one instance, witnesses testifying for the woman were lambasted by Denny for not urging her to reconcile with her husband.
Judge Seawell: “…the parties to an action in divorce proceedings are not the only parties in interest, but that society has an interest equal, if not greater than the wishes or whims of the parties litigant.”
What angered them was that married couples were using a new state law which made divorce less costly – not to mention being faster than waiting months for their date to come up on a Superior Court docket, usually jammed up with criminal and civil proceedings.
This alternative way of obtaining a divorce was decades ahead of its time – the concept of family court simply didn’t exist during the early part of the century (California didn’t get around to serious marriage reforms until the Family Law Act of 1969). And besides deserving a place in our history books for that reason it should be mentioned as a chapter in the struggle for women’s rights, as the conflict starkly pitted the powerful all-male judiciary vs. a class of (almost always) female plaintiffs.
By now Gentle Reader has probably guessed this divorce option wasn’t available for very long, and the whole episode was quickly forgotten – this is the first time it has been discussed since then, as far as I can tell. One reason it vanished from memory was probably because nearly all of the events played out in Sonoma County, then still politically a rural backwater.
Forgotten, too, is this Believe-it-or-Not! nugget: In 1915, a Santa Rosa woman served as a Superior Court judge. It was the first time that had ever happened in the history of the United States.
The law being used to expedite divorces was a 1910 amendment to the State Constitution which seemed to be just an administrative tweak for allowing temporary judges (“Judge pro tempore”) to help “relieve congestion of the Superior Court.” It did not mention marriage or divorce at all.
The amendment made a minor change to the wording in the 1879 version of the Constitution (the full text of the 1879 original is included among the sources below). This section of the law stated a judge pro tempore was a full-fledged Superior Court judge with the authority to hear any sort of case, from murder most foul to someone suing a neighbor over a property line. The temp judge was required to be an attorney and sworn in; both parties in the case had to agree to use that judge, who also had to be approved by the Superior Court judge. The 1910 amendment dropped the requirement that the judge pro tempore must be “approved by the court.”
According to the Press Democrat, it was Santa Rosa lawyer Thomas J. Butts who first realized in 1915 that it was well suited for handling divorces. Those cases were rarely adversarial, as the couple had already decided to break up; as long as they could agree on an attorney to serve as judge pro tem, the proceedings could be over in a few minutes.
Butts was a well established Santa Rosa lawyer and has been mentioned here often, usually as a defense attorney – although he also represented some pretty odd cases (see “THE LAWSUIT THAT WOULDN’T DIE“). He was involved in every one of these new style divorces and except for one time when he served as the pro tem judge, he was the always the attorney representing the wife.
The pro tempore judge was almost always Lucien E. Fulwider, a former San Francisco policeman who had been a lawyer for only a few years. Although they were never law partners he and Butts appeared together on other cases in Santa Rosa, most notably winning an acquittal for May Thomas in the sensationalized 1910 infanticide trials held here.
By the time Superior Court judges Tom Denny and Emmet Seawell caught wind of what was going on, Butts/Fulwider had filed paperwork for three divorces. To the Honorable Jurists, those divorces were likely invalid, potentially criminal, and would generally end civilization as we know it.
Both Seawell and Denny fumed to the Press Democrat in two lengthy September, 1915 articles. The judge pro tempore could be bribed or otherwise collude with the husband or wife. Perjury would be common since there was no court reporter. A hand-picked judge pro tem would always grant the divorce because that’s what they were paid to do.
Butts replied with a (mostly) good-natured letter in the PD, pointing out the judges were implying that they thought Sonoma County lawyers were unethical sneaks, if not outright crooks and liars. Be careful of that, he snarked; “judges are but attorneys elevated to the bench, and very frequently very inferior attorneys at that.”
But if Superior Court judges really did “possess all the knowledge and all the legal learning and integrity” in the state, perhaps they should be turned into corporations, in order to make sure ‘this knowledge and uprightness should be perpetuated and not be permitted to perish from the earth.'” Oh, snap!
He turned serious when the letter addressed the advantages that pro tem hearings offered wives seeking to quickly escape an abusive relationship: “It does away wilh the laws delays, and cuts down the expenses of the litigation, which in divorce cases where women with just cause frequently have to work twelve hours a day for fifty days to earn sufficient to get released from a drunken, worthless or brutal husband.”
Despite the howlings of the black-robed judges (“the bench is holding up its hands in holy horror at the thought,” Butts quipped) the pro tempore court sessions continued in Santa Rosa during the autumn of 1915, while a court was mentioned to have been convened in San Francisco.
A third lawyer sometimes was added to the Butts/Fulwider team: Mrs. Frances McG. Martin. She acted as the plaintiff’s attorney that time Butts sat as pro tem judge and she was the judge herself on November 16, making history as earlier mentioned.
Martin would rank high on any list of the most significant people who ever lived in Santa Rosa. You can read a profile of her in the 1911 county history by Tom Gregory, but I’m compiling a full bio which will appear here someday. She was a leader in the fight for women’s suffrage going back to the 1890s and a fearless speaker and writer.
While she was respected locally as an attorney (Gregory remarked she had “the reputation of looking closely after the interests of widows and orphans”), the male chauvinist press outside of the county thought the idea of a woman serving as a high court judge – or even being a lawyer – was ridiculous. National headlines included “WOMAN JUDGE GRANTS DIVORCES NOW WITHOUT ANY FUSS OR FEATHERS” and “MADAME THE JUDGE GRANTS A DIVORCE.” The wire service story that appeared in many papers nationally called her a “lawyerette,” and The San Francisco Call sent a reporter to ask, “how does it feel to be a judge?” She answered the disdainful question by saying, “Feel? Feel? Why there is no ‘feel’ to it. I am glad to be able to show men that women can really do things. That’s all there is to it, absolutely all.”
The divorce which Martin granted was probably the most abusive of those heard by the pro tempore judges. Mary Hanks testified she was frightened of her husband, William, a Sebastopol farmer. He had repeatedly threatened her and once kept a loaded revolver pointed at her as they drove to town.
Another divorce granted in 1915 on grounds of extreme cruelty was Celia Granziani vs. Emil (really Emilio) Granziani. He was a laborer in Aqua Caliente and they had married in 1907 when she was sixteen; they now had two small children and she was awarded custody. The Press Democrat noted that their entire proceeding before pro tem judge Fulwider took less that fifteen minutes.
Less than six months later, however, Emilio was before Superior Court Denny asking him to overturn the divorce on the grounds that there had been fraud and collusion and anyway, any decree by a pro tempore judge was invalid. There can be little doubt that he was being used as a stalking horse to bring a suit which could be taken up to the State Supreme Court. His arguments were the exact same as those made earlier by judges Denny and Seawell – and although he was a common laborer, he was being represented by ex-congressman Thomas J. Geary, the top lawyer north of San Francisco.
(Fulwider was not accused of judicial impropriety, aside from the notion that a pro tem judge presiding over a divorce hearing was in itself an act of fraud and collusion according to the regular judges. However, if Emilio Granziani brought his suit to Judge Denny’s court at the direction of Judge Denny and others, it certainly seems to me that there was lotsa defrauding and colluding in doing so. I’d welcome any feedback from attorneys versed in this aspect of the Code of Conduct.)
So Graziani v. Denny went off to the State Supreme Court, and everyone waited for what they expected to be a speedy decision. And they waited. And then waited some more. While Denny and others hoped the Supremes would entirely rid them of those troublesome pro tempore judges, the high court clearly saw they had been handed a hornet’s nest.
Obtaining a divorce in California was a two step process at the time. A married couple appeared before a Superior Court judge – either the regular, elected sort or a pro tem – and presented arguments for getting a divorce. If that judge agreed, an “interlocutory decree” was filed. The couple then had to wait a year, presumably time for them to work out details like alimony, property division, or maybe even reconcile. At the end of that time they went back to court and a judge gave them a final judgement which terminated the marriage.
But the 1910 change to the law also added wording that a pro tempore judge was involved in a cause only until the final determination. Thus it would be up to Judge Denny to issue the actual divorce decree – and he had told the Press Democrat that he wouldn’t finalize any divorces where a pro tem judge was involved.
With the Granziani case queued on the court calendar in Sacramento, the pro tempore judge hearings stopped, further obstructed by judges Denny and Seawell ordering the Clerk to not accept any more such filings. The few divorces (the PD stated, “at least a dozen”) that had been granted were now in limbo. And during this waiting period Thomas J. Butts died at age 60. He is buried in the Rural Cemetery.
Finally in January 1917 the California Supreme Court issued its ruling and it was an ultra-narrow decision (Graziani v. Denny, 174 Cal. 176, 162).
The court held that yes, a judge pro tempore was a real Superior Court judge. The court did NOT place any restrictions on a pro tem sitting on the bench and granting interlocutory decrees. Thus what Butts et. al. had done was perfectly fine.
But here’s where the hairsplitting came in: While a Superior Court judge cannot overrule another Superior Court judge, any motion to dismiss an interlocutory decree is presented “not to any individual judge but to the superior court of Sonoma County.” And since regular, elected judges Denny/Seawell represented the county superior court, they now could throw out any and all work produced by the pro tempore judge, including the interlocutory decree. (Please forgive me for the pounding headache you now suffer.)
The easier, pro tem divorces were over, now that the regular judges had veto power. In 1922 the law was changed back to requiring a pro tempore judge be approved by a regular elected Superior Court judge. The new law was drafted by Santa Rosa’s State Senator, Herbert Slater.
As for the Sonoma County divorces granted with interlocutory decrees, Mary Hanks – the loaded-pistol case – started again from scratch, seeking a new decree from a “regular” judge. Judge Denny granted her a new decree in July 1917, about twenty months after the one granted by Mrs. Martin. She paid two lawyers to represent her before the court. Celia Graziani never got her divorce; she was pregnant with her third child when the Supreme Court decision was issued and didn’t have a job outside the home until the mid 1920s, when she worked in a San Francisco laundry. It appears only a single decree written by a pro tem judge was accepted and that was in a divorce sought by a man: George W. Mayfield.
Judges Denny and Seawell believed their black robes gave them a nearly feudal right to dictate the rules of society beyond what appeared in the law books – and part of their unwritten code was that the plaintiff should be punished for seeking a divorce. They were not the only judges who had that view; the Press Democrat quoted a San Francisco judge as saying, “painless divorces… are neither a source of edification to our citizenship nor a source of good to society.”
In truth, these jurists were just exhibiting a show of power – a demand that women bend to their absolute moral authority. Yet making the legal process as painful, expensive and difficult as possible did not deter those wives from seeking divorces (although in the case of Celia Graziani, the cost of hiring lawyers might have been a factor). I’ll yield the last word to Thomas J. Butts:
My observation and experience extending over 25 years, has been, that if you should obliterate all the laws on divorce and say that no divorce should be granted except for the one thing, that one of the spouses threw the other down stairs, in every couple that wanted a divorce one or the other would throw the other spouse down stairs. When people cannot live longer together, and the law provides that upon one single ground divorces would be granted, it would not diminish divorce.
ARTICLE VI. SEC. 8. A Judge of any Superior Court may hold a Superior Court in any county, at the request of a Judge of the Superior Court thereof, and upon the request of the Governor it shall be his duty so to do. But a cause in a Superior Court may be tried by a Judge pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant or their attorneys of record, approved by the Court, and sworn to try the cause.
– California Constitution of 1879
Senate Constitutional Amendment Number 36 provides that there may be as many sessions of a Superior Court in any county as there are Judges therefor, or as many as may be called from other counties or appointed pro tempore from the bar.
The design of this amendment is to relieve congestion of the Superior Court arising from the construction placed on the present Constitution, which holds that only the number of Superior Court Judges elected for a given county can sit at one time in that county. In case of a protracted trial, this ruling causes much inconvenience and congestion of the court calendar.
– Official description of 1910 ballot item
AMENDMENT PROVIDING FOR ‘JUDGES TEMPORE’ UNDER DISCUSSION AT THIS TIME
Act of the People in November 1910, Is Being Used in the Superior Court and Its Force and Effect Is Reviewed by Superior Judges of Sonoma County
Recently in the Superior Court of Sonoma county three divorce actions have been tried with an attorney-at-law sitting as “Judge Pro Tempore” in place of either of the regular presiding judges of the Superior Court, as provided by the above amendment. Considerable interest has been aroused as well as considerable discussion.
By the amendment to the State Constitution, the sitting of a judge pro tempore is permissible, as will be seen by the language. And what is more, the people gave permission for such courts, the amendment adopted, too, in the regime of Governor Gillett, and cannot be charged by some persons as being one of the suggestions of the present Governor, upon whose head so much “progressiveness” is heaped.
Judges pro tempore can sit in any kind of litigation, their actions not being merely confined to divorce cases, judging from the language of the amendment. It places no restriction on the kind of litigation that can be heard by them.
Despite the fact that the Constitutional Amendment went into effect in November of 1910, it was only a couple of months or so ago that it was used in this county. And probably Sonoma county is the pioneer in its frequent use since. The regular judges of a county apparently have no control over the acts of a judge pro tempore, but his rulings are subject to review by the Appellate and Supreme Courts.
Judge Seawell’s Opinion
Judge Seawell said Wednesday: “The effect of the amendment is subversive of all well-established principles of the laws heretofore enacted, particularly in divorce cases, if given the application which the language of the amendment seemingly justifies.
“All courts have uniformly held that the parties to an action in divorce proceedings are not the only parties in interest, but that society has an interest equal, if not greater than the wishes or whims of the parties litigant.
“The constitutional amendment, if applied in the way sought, would place the question of the dissolution of matrimonial bonds in the hands of an attorney who may be the advocate of either one or the other in the large class of cases in which it is practically agreed between the parties that matrimonial ties may be severed. Of course this would be the foulest kind of connivance between husband and wife and society, for public interest would have absolutely no voice in the matter. This alone would be a heavy stroke at the foundation of domestic institutions. Personally I would willingly withdraw from trials of divorce cases. The entire judiciary of the State is already dissatisfied with what it is compelled to do under the law as it now stands. Connivance and perjury sufficiently tie the hands of the court in favor of unworthy litigants as the matter now stands.
“Judge pro tempore may set aside rules of court which require the testimony of the litigants to be perpetuated by stenographic notes and make the persons giving false testimony feel reasonably secure against criminal prosecution for perjury. They may also be relieved of the asking of embarrassing questions which a court, acting under judicial responsibility would be inclined to ask them.
“The amendment extends to all civil proceedings, and if the construction as intended is to be given to the language the judges tempore may be holding court while the regular judges are unoccupied, and in such cases men have been passing upon matters of vital interest to society who have never been commissioned by the people so to do except by the constitutional provision.
“Both the judge tempore and his acts are beyond the recall,” said the Judge.
Judge Denny’s Opinion
Superior Judge Denny is equally apprehensive concerning the working of the constitutional amendment regarding the powers of judges pro tempore. “I consider this one of the very worst pieces of legislation. You cannot quote me too strongly in my opposition to the amendment,” Judge Denny said.
– Press Democrat, September 23 1915
PRO TEMPORE JUDGE MAKES DIVORCE PATH MORE EASY
Press Democrat’s Article on Thursday Morning Creates Widespread Interest—Judge Thomas C. Denny Makes Statement on the Subject
THE PRESS DEMOCRAT’S article relative to the holding of court by judges pro tempore in the Superior Court of this county was read with widespread interest on Thursday morning and occasioned much comment.
Several members of the Sonoma county bar were outspoken in their denunciation of the Constitutional amendment permitting such actions, which, though passed in November, 1910, eliminating the power of the Superior Court for any control over judges pro tempore or their appointment, has not been used in this county until recently.
In addition to his statement in Thursday mornings’ Press Democrat, Judge T. C. Denny had this to add Thursday night:
“The Constitution originally provided that any attorney agreed upon in writing by the parties to an action, might act as a judge pro tempore in the Superior Court with the same authority as the judge thereof, provided that the selection was approved by the Court. The amendment of 1910 leaves out of the section this very vital clause, and the amendment was probably secured. as are most of our laws, to fit some particular case about to be instituted.
“The original section was proper and probably enacted to be used in one of two events, either where all of the judges of the county were disqualified for some reason, or where the calendar of the court was so crowded that litigants really needed relief. But as far as I have been able to ascertain, the provision was never used in this county. While the Constitution provided that the judge pro tempore may be appointed to act in any action, I am convinced that it will, in all probability, be used only in actions for divorce. At least that is the experience of this county. I can see no reason for its being used in other cases as judges who are disqualified are always willing to call in outside judges.
“As to using judges pro tempore in divorce actions, it looks to me as if under the present method of securing a divorce it would never be used unless the parties thought they had no chance to secure a decree before the court; in other words, the plaintiff who has meritorious grounds for securing his divorce will never ask for a judge pro tempore; so that the court and the public are not to be blamed if they believe that any action brought in this manner is fraudulent on its face. My reasons for saying this are two:
“First, each county of the State is provided with a court of one or more departments, each department having its judge and full quota of officers free to litigants. Why then should these litigants hire an attorney to hear their case and add this uncalled-for expense to their ordinary costs?
“Second, no attorney will be asked to sit as a judge pro tempore in whom all the parties interested have the slightest doubt as to what his decision will be. To expect otherwise would be to expect the divine in the human. No one will pay an attorney to hear a divorce action if there is any question as to his decision.
“I feel a little strongly in this matter because one of my first acts as judge was to set aside the former court rule by which most divorces in this court were referred to the court referee, and insisted that they be heard in open court, thinking that it might do away with some of the evils of divorce if plaintiff had to face the court. I do not say that, my hopes have been fulfilled to any great extent. But if it was any improvement over the old system, whatever of good was accomplished is now lost, because they are now trying these cases without a court reporter and witnesses can commit perjury without any thought of punishment.”
VIEWS OF THREE OTHER JUDGES
Here are the views of three San Francisco Superior judges on the “Judge pro tempore” matter:
OUTRAGEOUS SITUATION Judge Thomas F. Graham: “If use is made of the new position in the law,” declared Judge Graham, “the divorce lawyers of San Francisco will be rushed to death and will become wealthy in a comparatively short time. It’s easy enough to get a divorce now, but painless divorces, in the private offices of divorce lawyers, are neither a source of edification to our citizenship nor a source of good to society. There has been some blundering, from all appearances, in the preparation of the new legislation, and the quicker this is remedied the better for everybody—excepting the divorce lawyers.”
OPENS DOOR TO COLLUSION Judge Mogan said: “The selection of an attorney by the parties to a litigation to act as judge instead of the duly elected judicial officer while authorized by the law should be confined to cases of emergency and its extension indiscriminately to divorce cases should not only be deplored, but prevented.
“The only time when an attorney should be selected in place of a judge is where the attorney was the judge who originally presided over some aspect of a case which was left uncompleted when his term of office expired. The law which permits an attorney selected by the parties to act as a judge in a divorce suit opens the door to collusion and cannot but result in increasing the number of divorces.”
AN ABSURDITY Judge John J. Van Nostrand said: “The absurdity of permitting any attorney to preside over the trial of a suit through arrangements of the parties to the litigation was illustrated in my department recently in the quiet title suit of Vandal against All Persons. In that case the attorney for the defendant started proceedings to have a judge pro tempore appointed. The purported appointment was made and the judge pro tempore began to cite half a dozen attorneys and witnesses for contempt and enjoined nearly everybody under the sun from interfering in any way with the defendant.
“The matter was so complicated before the judge pro tempore was through that the Supreme Court had to step in with a writ of prohibition to straighten out the matter. I haven’t had any experience with the appointment of judges pro tempore in divorce suits, but if self-constituted judges can do so much damage as in the quiet title suit of Vandal versus All Persons, I should say that the law authorising such judges is one fraught with grave possibilities of mischief.”
– Press Democrat, September 24 1915
“TEMPEST IN TEAPOT” SAYS BUTTS; ‘JUDGE PRO TEMPORE’
Santa Rosa Lawyer Upholds the Much-Discussed Constitutional Amendment and Fires Lots of Questions at the Gentlemen Who Have Been Elected to the Bench
Thomas J. Butts, well known lawyer, ridicules the controversy over the Constitutional amendment regarding the “judges pro tempore” as being a “tempest in a teapot,” and says the said amendment is one of the best ever passed by the people. He challenges any implication that an attorney, in Sonoma county, at least, would be guilty of collusion or subornation of perjury. But there, let his letter to the Press Democrat explain his views:
(By Thomas J. Butts)
Editor Press Democrat: From your article published in the issue of your paper of September 23rd, and also the article entitled “Pro Tempore Judge Makes Divorce More Easy,” in the issue of your paper of September 24th, I see that the matter of judge pro tempore sitting in divorce cases has created a tempest in a teapot, and the bench is holding up its hands in holy horror at the thought. But it seems strange to me that judges of the State of California who have taken the oath to support the Constitution when they took their oath of office, should be the first to throw down the Constitution when its provisions seem to run contrary to what they deemed was their prerogatives.
UPRIGHTNESS OF ATTORNEYS
Why should an attorney be any better qualified or any more upright and honest because he has been elected to the judgeship, than one who has been appointed, or one who has been stipulated by the parties to try the case? Does the election of an attorney to office make him any more just or upright than he was before, or does he by reason of that fact become more learned or more just and upright than attorneys at the bar? Attorneys are all officers of the court, and are sworn to uphold the Constitution of the United States and the State of California, and when they are appointed judge pro tempore by the stipulation of the parties they are sworn to try the cause the same as the Superior Court judges are sworn.
And I repel the implication that any attorney in this county, at least, would become party to collusion and subornation of perjury in order to obtain a divorce for anybody, or that any member of the bar of Sonoma county, if selected judge pro tempore would not try a case as fairly and uprightly as the gentlemen upon the bench.
INCORPORATE ‘INDIVIDUALS DIE’
If the legal gentlemen upon bench of the State of California possess all the knowledge and all the legal learning and integrity, and none is left to the bar, then the State of California should incorporate the members of its bench, for individuals die, and this knowledge and uprightness should be perpetuated and not be permitted to perish from the earth, when the members of the bar – the only source from which their successors may be chosen, are woefully deficient. Judges are but attorneys elevated to the bench, and very frequently very inferior attorneys at that. And I say without hesitation that Charlie Wheeler, Gavin McNab, Garret McInerney and hundreds of others that I might mention, are at least the equivalent in honesty and integrity and in the knowledge and learning of the law of Judge Van Nostrand and Thos. Graham, who criticize the Constitutional amendment adopted by the people.
It has been the law for thirty years that the litigants, or their attorneys could appoint an attorney to try their cause with the acquiescence of the judge of he Superior Court. That provision of the Constitution of 1879 was a nullity. Why? Because of the words “approved by the court.”
AND WHY NOT?
If there should be any reason why a judge should not try a cause, by what force of reason or logic can it be maintained that he should appoint someone to try it? It is a good deal like permitting a detective who has worked up a case against a defendant to appoint the judge to try it. Of course, there could be no collusion among the gentlemen of the bench. A judge when he is called in to another county to try a case never talks it over with the judge who called him and gets his view of what ought to be done in this case, and of course, the judge who called him in to take the case has nothing to do with the decision! But such things might happen, just as attorneys might collude in a case.
IT SAVES EXPENSE
The section of the Constitution is one of the best that has ever been passed by the people. It does away wilh the laws delays, and cuts down the expenses of the litigation, which in divorce cases where women with just cause frequently have to work twelve hours a day for fifty days to earn sufficient to get released from a drunken, worthless or brutal husband.
Then again, what interest is it to the bench who tries causes that are not brought before them. It is true that people may need guardians but they are not quite ready to submit their guardianship unqualifiedly to the judiciary, albeit I believe that the bench of Sonoma county and of the State of California in general is made up of honest, able and upright men. But I see no reason why these gentlemen occupying a high and exalted situation should be making an assault the Constitution passed by the people. In the language of Shakespeare, “Alas, what secret motives they have, I know not, that made them do it!”
I conceive it to be the law that when litigants come before the court in a divorce case, or in any other, and the party proves his case according to law, then he is entitled to have judgment his way.
SHOULD BE NO BIAS
And I will go further and say that any judge who has a bias or prejudice against litigants, or against the cause of action pending before him, should not, in honor, preside at the hearing. If the judge does not believe in divorce and is not willing to abide by the law, then he should refuse to hear a divorce case.
However, it might be in San Francisco, I submit that the new law is in no danger of being abused so long as an attorney in Sonoma county acts as judge pro tempore. Thomas Graham to the contrary notwithstanding.
It is said strenuously that it opens the door to collusion. If there is collusion in a case, the case is prepared before they commence the divorce, and can as well be in the Superior Court before a judge as before a judge pro tempore. My observation and experience extending over 25 years, has been, that if you should obliterate all the laws on divorce and say that no divorce should be granted except for the one thing, that one of the spouses threw the other down stairs, in every couple that wanted a divorce one or the other would throw the other spouse down stairs. When people cannot live longer together, and the law provides that upon one single ground divorces would be granted, it would not diminish divorce. Such a law would increase perjury and rascality, but would not diminish separations, and that, too, whether the cases are brought in the Superior Court or before a judge pro tempore. It seems to be the opinion on the part of some of the bench that thev are entitled as a matter of right to try all the cases of the people in their respective counties, but the people think if they try well and truly the cases brought before them, they are filling the full measure of their office; otherwise they would not have enacted such an amendment to the Constitution.
Very truly, T. J. BUTTS.
– Press Democrat, September 25 1915
PRO-TEMPORE IS ON BENCH AGAIN
Mrs. Celia Graziani Is Granted a Divorce From Her Husband at the Sonoma County Courthouse Yesterday
Judge pro tempore again.
He occupied the bench in Judge Denny’s department of the Superior Court, even while Superior Judges T. C. Denny and Emmet Seawell were in their chambers a few feet away. He sat with the California Constitution giving him a legal right so to do and their Honors could not say “Nay.”
With Judge Pro Tempore L. E. Fulwider on the bench, Mrs. Celia Graziani was granted a divorce from her husband, Emil Graziani, on the ground of extreme cruelty. Graziani did not appear to oppose the suit, having agreed in writing to the selection of Fulwider as judge pro tempore. Thomas J. Butts represented the plaintiff.
The complaint and answer was filed and the trial had within a quarter of an hour [sic]. The evidence given undoubtedly indicated, those present say, that the woman was entitled to a divorce.
– Press Democrat, September 29 1915
Judge Pro Tempore L. E. Fulwider sat on the bench in the Superior court here again Wednesday and granted another divorce. The plaintiff was Mrs. Mary E. Harris and the decree from her husband was given her on account of his failure to provide. Mrs. Harris, Ivy Keichum and Ruth Zimmerman were the witnesses called and Attorney Thomas Jefferson Butts appeared for the plaintiff.
– Press Democrat, November 4 1915
JUDGE BUTTS ON THE BENCH AS PRO TEMPORE
“Discoverer” of the Constitutional Provision Which Allows the Selection of Temporary Judges in Superior Court
Thomas Jefferson Butts, the well known lawyer and poet, who might practically be termed the “discoverer” of the Constitutional provision that allows the the appointment of Superior Judges pro tempore in the trial of divorce actions and other litigation, where both parties to the action agree, was himself elevated to the bench temporarily on Saturday morning and presided as judge pro tempore at the trial of the divorce suit brought by Mrs. Rebecca Patton against her husband, John Patton.
Mrs. Patton charged her husband with wilful desertion, and it was intimated that Patton had only worked for three months out of three years. Attorney Frances McG Martin appeared for the plaintiff.
Judge Butts handed down his oral opinion from the bench at the conclusion of the evidence which was evidently sufficient for the granting of Mrs. Patton’s prayer, and in giving the interlocutory decree took occasion to refer to an opinion given by the late Supreme Justice Jackson Temple involving a similar point to that standing out prominently in the Patton suit.
Judge Butts amply filled the judicial seat, and did so with considerable dignity, too.
– Press Democrat, November 14 1915
JUDGE FRANCES M’G. MARTIN GRANTS WOMAN DIVORCE
First Woman in the United States to Occupy a Higher Court Bench Than Justice of Peace — Unique Scene in Sonoma County Superior Court on Tuesday
ATTORNEY FRANCES McG. MARTIN, Santa Rosa’s well known woman lawyer, occupied the bench in Judge Denny’s department of the Superior Court yesterday end granted Mrs. Mary A. Hanks an interlocutory decree of divorce from her husband, William A. Hanks, a Sebastopol farmer.
This is the first time a woman jurist in the United States has granted a divorce decree or has ever ascended the bench in a Superior Court in the country. Therefore the position occupied by Judge Martin yesterday was a unique one and a decided compliment for her.
Judge [sic] Thomas Jefferson Butts was counsel for the plaintiff, and interrogated the witnesses, and the presiding judge had a number of questions to propound to each witness.
Mrs. Hanks testified that her husband had deserted her and had also been cruel to her. She narrated how on more than one occasion he had told her “to get out,” and at one time drove her to town ahead of him, he following her with a loaded revolver pointed at her. She testified that she was afraid of her husband and would not return to him in consequence. She further testified that her husband had used vile language toward her.
Two other women witnesses corroborated Mrs. Hanks’ testimony, and at the conclusion of the evidence Judge Martin granted the decree on the ground of willful desertion and extreme cruelty.
A number of spectators were present in the courtroom to witness the interesting proceedings, which, as intimated, marked the first time a woman had occupied the bench in a high court in this country.
– Press Democrat, November 17 1915
WOMAN LAWYER OCCUPIES BENCH
SONOMA COUNTY PORTIA SITS AS SUPERIOR JUDGE AND GRANTS DIVORCE
Frances McG. Martin Presides In Department of Superior Court and Grants Divorce to Mrs. William A. Hanks, wife of Sebastopol Man.
Wm. A. Hanks, well known in Sebastopol, having formerly resided here, alternating ranching with bartending, has been handed notoriety and divorce all in a day. So far as known Hanks is the first man in the United States to be divorced from his one-time lady love by a lady lawyer, occupying the bench as superior judge.
Incidentally, however, the honor in connection with the case falls upon Frances McG. Martin, Sonoma county’s Portia, who has the distinction of being, so far as known, the first woman in the country to occupy the bench of a superior court.
The case of Hanks vs. Hanks was heard in Judge Denny’s department Thursday, and an interlocutory decree was granted Mrs. Mary Hanks.
Mrs. Hanks testified that her husband had deserted her and had also been cruel to her. She narrated how on more than one occasion he had told her “to get out,” and at one time drove her to town ahead of him, he following with a loaded revolver pointed at her. She testified that she was afraid of her husband and would not return to him in consequence. She further testified that her husband used vile language toward her.
Other witnesses corroborated the testimony of Mrs. Hanks and Judgess Martin granted the decree on the ground of wilful desertion and extreme cruelty.
– Sebastopol Times, November 20 1915
WOMAN, ON BENCH, DESCRIBES HER LIFE TO ELUDE QUESTIONS
“How Does It Feel to Be First Judge?” Dodged by Santa Rosa Fair Lawyer
“How does it feel to be a judge?” was the question put to Attorney Frances McGaughey Martin of Santa Rosa, the first woman in the United States to occupy the bench of a civil court higher in rank than that of justice court. She smiled as she replied:
“Well, you see this new law, making it possible for two contesting parties to appoint a regular practicing attorney to sit as judge protempore in the case is being taken advantage of in this instance. Of course, it’s a regular court and I am vested with all the prerogatives of a judge; in fact, I am a judge while sitting in the case.”
HOW DO YOU LIKE PIONEERING?
“And so, Mrs. Martin, how does it seem to be a ‘first,’ a pioneer?” was asked again.
“Well, of course, you must understand that I have been practicing for nineteen years. There are probably only two other women in the state that have been longer before the bar than I have. One of these is Samuel Shortrldge’s sister, Mrs. Clara Foltz, and the other is Mrs. S. T. Coffey, formerly Mrs. Luda V. Barham.
“That was peculiar about Mrs. Barham. When her father in law, J. A. Barham, was in Congress he induced his son, Ed and his daughter in law to practice in the United States Supreme court, and it was the first time that this had been done by a congressman. Mrs. Barham was the second woman attorney that California ever had.”
“BUT, HOW DOES IT—”
“Now, let me see, Mrs. Martin, how does it—”
“As I was saying, nineteen years ago I began the study of law. I had been eight years county superintendent of schools in Sonoma County, and. I went into the office of the late Allison B. Ware, that grand old man of the California bar. I entered his office in January of one year and took my examinations before the Supreme Court in the next December.”
“And about this case in hand. How—-”
“I have handled many cases in those nineteen years. I believe I am third in the number of divorces in the county. Then my estate business is a big one. But criminal cases, no. I don’t handle them unless appointed by the court.
AGAIN WE ASK YOU, MRS. MARTIN
“Mrs. Martin, how”—
“Now if you must know about this case, it is a divorce action. It is entitled Mary E. Hanks against William Hanks. The ground in the complaint is willful desertion. The case was a clear cut one, plenty of evidence, and I granted the decree.”
“Yes, Mrs. Martin, but how does it feel to be a real truly live judge, the first woman judge in the United States?”
“Feel? Feel? Why there is no ‘feel’ to it. I am glad to be able to show men that women can really do things. That’s all there is to it, absolutely all.”
– San Francisco Call, November 16 1915
Judge Pro Tempore Again on the Bench
Judge Pro Tempore L. E. Fulwider was again on the bench in the Superior Court yesterday. He presided In the suit of Mrs. Mary E. Davis against J. L. Davis. Thomas J. Butts was the attorney for the plaintiff. The evidence being conclusive to support the grounds upon which the action was brought, the interlocutory decree of divorce was granted.
– Press Democrat, December 15 1915
FIVE JUDGES SITTING IN COURTHOUSE WEDNESDAY
Five Judges sat in various capacities in the courthouse Wednesday.
Superior Judge Zook was presiding at the trial of a murder case.
Superior Judge Tom Denny had an examination in progress.
Judge Pro Tempore Lucien E. Fulwider tried a divorce case.
Justice of the Peace Marvin Vaughan presided in his court.
County Clerk W. W. Felt sat as judge in a land proving case.
– Press Democrat, January 27 1916
JUDGE PRO TEM’S RIGHT TO DON ERMINE IS ATTACKED
Fraud and Collusion Urged in Granziani Suit,the Decree in Which Judge Denny Is Asked to Set Aside—Able Arguments Are Being Presented
When the suit of Celia Granziani vs. Emil Granziani was called in Judge Tom Denny’s department of the Superior Court on Monday afternoon there started a legal battle which will either oust Judge Pro Tempore from judicial function on the woolsack in the Superior Court of the County of Sonoma and the State of California, or will retain him with the power seemingly vested in him by the People of the State of California in their Constitution. The latter right, when taken into consideration and viewed with other constitutional provisions, has aroused doubt in the minds of the regular judges and also many lawyers. It is intended that the suit of Granziani vs. Granziani — that is, its bearing upon the pro tempore judge phase, shall go to the highest tribunal in the State if necessary.
Emil Granziani asked the Superior Court to set aside or modify the divorce decree granted in the suit on the ground of fraud and collusion and attacking specifically the validity of the decree as it was granted by a pro tempore judge.
OBJECTION IS RAISED
William F. Cowan, who was called into the controversy on the point attacking the validity of judges pro tempore and who was not of counsel in the trial or bringing of the suit, objected to Judge Denny hearing the motion in the Granziani suit, questioning his jurisdiction on the ground that the Constitution vested in the power of the judge pro tempore the right to hear and determine matters pertaining to the divorce action, in which a pro tempore had presided that might occur during the twelve months that must elapse between the granting of an interlocutory decree and its becoming final. At the same time counsel had something to say upholding the rights of pro tempore judges under the Constitution. With Mr. Cowan was Thomas J. Butts, whom former Congressman T. J. Geary dubbed “creator of the judge pro tem.”
Former Congressman Geary and Leslie E. Johnston of Napa were counsel for Emil Granziani and they attacked the judge pro tempore’s supposed Constitution bulwark. Geary cited many authorities and held that the jurisdiction of a court cannot be stipulated away. “You can create another judge,” he said, “but you cannot create another judicial tribunal. There is one Superior Court of the county of Sonoma, and there are two judges of that Superior Court, each vested with jurisdiction.”
Mr. Geary said he thought the Court was not only justified in setting aside the decree on the ground that it was obtained by collusion, but that the whole idea of judge pro tempore in the construction given his authority by counsel on the other side should be swept aside and that the clerk should be enjoined from filing “any more such papers.”
Attorney Cowan will reply to the argument of counsel when court resumes at half-past ten o’clock this morning.
– Press Democrat, March 28 1916
‘PRO TEMPORE JUDGE’ GOES TO THE SUPREME COURT
Judge Denny Says He “Does Not Believe Decrees Are Worth Paper They Are Written On” — Court Rules at Close of Argument Yesterday Afternoon — Holds Decision Temporarily in Abeyance — Motion to Set Aside Decree Is Granted
The Supreme Court of California will now have a chance to pass upon the validity of the acts of an attorney sitting as a judge pro tempore in divorce suits and granting decrees just as a regular judge of the Superior Court. Sonoma county will furnish the nut for the men wearing the ermine in the State’s highest tribunal to crack.
At the conclusion of the arguments in the motion made by Emil Granziani, through his attorneys, former Congressman Thomas J. Geary and Lester E. Johnston, asking the Court to set aside or modify the interlocutory decree granted Mrs. Celia Granziani by Judge Pro Tempore Lucien E. Fulwider, Judge Denny announced his determination to set aside the decree entered by the Pro Tempore and send the matter to the Supreme Court for final determination, realizing the importance of the matters involved.
SPEEDY HEARING WANTED
After Judge Denny had announced his determination of the suit and his unseating of the Judge Pro Tem as far as he was concerned, William F. Cowan of counsel in the validity proceedings and Mr. Geary both agreed that the matter should be taken to the higher court just as speedily as possible to have the constitutional provision regarding the judge pro tempore settled once and for nil. There was some demur as to the method of procedure.
Geary suggested that inasmuch as the plaintiff had filed an answer the suit could be immediately set down for trial before Judge Denny, and then Cowan could apply for a writ of prohibition to the Supreme Court to prevent the Court proceeding with the trial and that would bring the matter up squarely to the tribunal on its merits.
Cowan did not agree that this was the best method of procedure.
When Judge Denny agreed to temporarily hold his decision to set aside the decree in abeyance until counsel had which would be the most expeditious manner in which to present the constitutional provision to the Supreme Court for its construing of a much vexed question.
In view of this, Judge Denny had the matter submitted, but it was definitely stated, and reiterated to a Press Democrat representative by the Court himself after adjournment, that he had stated what his judgment would be and his decision of the case, and that it was absolutely against the sitting of judges pro tempore in divorce proceedings.
ARGUMENT IS ENDED
After Attorney Cowan had completed his able argument and the citing authorities on the constitutional provision for judges pro tempore holding that the sitting of such judges was legal and provided for in the constitution, even without the approval of the regular judges of the Superior Court, and that the people of the State had meant exactly what the constitution says, counsel was followed by Mr. Geary in closing for the defendant, who asked that the decree be set aside. As on the previous day, counsel urged that while a judge might be created there was no provision for another tribunal. He also quoted more authorities.
JUDGE DENNY RULES
When Geary had completed his argument, Judge Denny said he had studied the constitutional provision and had determined to let the Supreme Court pass upon the matter. This had been his decision, he said, since the very first time the matter was called to his attention after the first interlocutory decree had been granted by a judge pro tempore. Therefore now the opportunity he had waited for had been afforded, he meant to pass it right up to the Supreme Court.
“From the start I have expressed myself, and I don’t think the judgments in such cases are worth the paper they are written on. I have never thought anything else,” said the referring to the decrees granted by pro tempores.
“And when it comes to the standpoint of morality, well, I probably had not better state what I really think, other than I consider such procedure means the undermining of the morals of society. In divorce proceeding it opens up all the grounds for all kinds of corruption md collusion.
“It is very plain to me that when papers are properly filed in this court I immediately acquire jurisdiction, and that jurisdiction cannot be taken away from me except by well-defined rules of court or by the statues. If such procedures as this is allowed all jurisdiction would be destroyed. It is too revolutionary,” said Judge Denny.
When the matter is properly presented to the Supreme Court the decision of that tribunal will be awaited with much interest, especially by the persons most interested, those who have been granted their decrees by pro tempore judges. There have been at least a dozen of such decrees given in this county and should the highest tribunal sustain Judge Denny’s opinion there be a rather unique state of affairs, to say the least of it, as to what standing the divorced ones would have.
It is likely that today or tomorrow counsel will, for Mrs. Granziani, decide as to what course to pursue to get the matter the quickest up to the Supreme Court for final determination.
– Press Democrat, March 29 1916
JUDGES DENNY AND SEAWELL FORBID THE FILING OF PRO TEMPORE JUDGE DECREES
DEAN BUTTS’ REMARKS
Thomas Jefferson Butts, dean of the use of the constitutional amendment providing for Judges pro tempore, said, with a bland smile, after he had learned of the court order:
“An officer who arrives at a point when he cannot consistently support the Constitution of the State of California should resign.
“The duties of the clerk are prescribed by law, and the filing of instruments in the clerk’s office, the place where they are entitled to be filed, the Superior Court has no right to stop.”
– Press Democrat, April 29 1916
It is about time somebody gave this Judge Pro Tempore business a good swift jab in the solar plexus. Any law is a poor law that pretends to make it possible for three attorneys — or two attorneys and a hired man — to get together and without giving notice to anybody by mutual consent set aside a legal decision that has been handed down in due form by a regular elected Judge of the Court. No more absurd proposition has ever been heard of.
– Press Democrat editorial, April 29 1916
DEATH OF THOMAS J. BUTTS HERE ON SATURDAY NIGHT
– Press Democrat, June 25 1916
Wants ‘Regular’ Judge To Grant Her Decree
Mrs. Mary Hanks does not want the interlocutory decree which was granted by a pro tempore superior judge over a year ago made a final decree. Instead, she has had the old suit against her husband, William W. Hanks, dismissed, and has commenced a new action for a divorce in the Superior Court, and she wants it heard by a “regular” judge. C. E. Davis is her attorney.
For many moons now the Supreme Court has had the matter of the determination of the pro tempore judge validity under advisement. It was appealed from Sonoma county. The decision is awaited.
– Press Democrat, December 30 1916
PRO TEMPORE JUDGE DIVORCE DEGREES STILL IN THE AIR
Supreme Court Affirms Judge Denny’s Contention That He Still Has Jurisdiction Now the Legality of the Pro Tempore Must Be Settled as Final Decrees May Not Be Signed
The Supreme Court has held that Judge Thomas C. Denny has jurisdiction to hear a motion to set aside a decree of divorce granted by a judge pro tempore in the suit of Graziani vs Graziani, and thus affirms the Sonoma county jurist’s opinion. But in passing upon the matter the highest tribunal in the State does not attempt to settle the question as to the legality of the judge pro tempore, as the direct question as to this had not been presented.
– Press Democrat, January 6 1917
PRO TEM JUDGE USE SET ASIDE
Judge Denny Grants Order Setting Aside the Decree of Divorce Granted to Mrs. Cecile Graziani
…In this case the defendant, owing to the uncertainly of the provision of the constitution allowing pro tempore judges, asked the court to set the decree aside so that the matter might he heard before one of the regular Superior Court judges.
The matter will now he squarely presented to the Superior Court.
– Press Democrat, February 11 1917
MARY ANN HANKS IS GIVEN HER DIVORCE
In Judge Denny’s department of the Superior Court on Wednesday morning the suit of Mary Ann Hanks, against her husband, William W. Hanks came to trial. After listening to the evidence Judge Denny granted the interlocutory decree. Emmet I. Donohoe was the attorney for the plaintiff.
– Press Democrat, July 19 1917
WINNER OF PRO TEM DIVORCE IS MARRIED AGAIN
George W. Mayfield, Local Real Estate Dealer. Waits Three Years and Then Claims Mrs. Minnie Manwell as Wife.
The signing of a final divorce decree for George W. Mayfield yesterday by Superior Judge Emmet Seawell enabled Mr. Mayfield to claim Mrs. Minnie E. Manwell as his wife in a ceremony performed last night by Rev. Charles W. DeVol, and ended a three-year controversy as to the validity of divorce decrees issued by pro tempore judges.
Mr. Mayfield was divorced three years ago, with Pro Tempore Judge L. E. Fulwider presiding, as provided by the constitutional amendment which was voted by the people a short time previously. His interlocutory decree of divorce was signed by Fulwider as Judge.
At the same time a controversy which became somewhat bitter arose between various lawyers who had been sitting as pro tempore judges and the regularly elected judges of the county. The regular judges charged that pro tempore judges made divorce too easy, and to make a test of the matter refused to sign any final decrees. The matter was taken into the higher courts before it was settled, and before persons in the situation of Mr. Mayfield were able to gain their final freedom under the law.
– Press Democrat, September 6 1919