by Alan J. Crivaro and the Honorable James J. Di Cesare
Crisis management is a subject not taught at the Center for Judicial Education. When the Honorable Kirk H. Nakamura became presiding judge of the Orange County Superior Court in January 2019, he could not have imagined what awaited him during his term. We expect our judicial officers to be able to make difficult decisions, yet the coronavirus pandemic presented nonpareil challenges to the administration of justice. Neither the Great Depression nor two world wars precipitated the closure of the Orange County courthouse. Neither legal precedent nor history offered perfect solutions to the myriad of today’s complex problems. Despite the multifaceted issues facing the court, this year’s prestigious Harmon G. Scoville Award recipient, Judge Nakamura, demonstrated that he truly is an innovative thinker and a “big-picture” judge.
Our bar continues to remember the outstanding career and professionalism of Justice Harmon G. Scoville for good reason. He was a decision maker who seemingly always brought out the best in others by encouraging them to rise to the occasion. The values embodied by this award are timeless and continue to inspire us. Established in 1990, the Scoville annually recognizes a member of the Orange County legal community whose career exemplifies the highest standards of the legal profession; someone who has significantly contributed to the Orange County Bar Association and has championed our constitutional system of justice. This year’s recipient certainly manifests these values. In the midst of many, he stands above the rest.
In congratulating Judge Nakamura on this well-deserved award, the Honorable Tani G. Cantil-Sakauye, Chief Justice of the California Supreme Court observed, “Leadership is a challenge and all too often judges are not acknowledged for having to make tough but necessary decisions.”
The Orange County Superior Court is one of the largest court systems in the United States. The story of the seemingly endless difficulties brought on by the pandemic and the responses by the bench, its staff, and the bar are material for the retelling by future local historians. At the heart of that story, however, is the unifying leadership of this Scoville recipient.
Judge Nakamura’s personal backstory and his many recognized accomplishments have been previously shared in the pages of Orange County Lawyer.1 In brief, throughout his time as a practicing lawyer and as a superior court judge for nineteen years, he has been an active supporter of OCBA and its many law related programs. Despite the constant demands on him by his role as an administrator for the last few years, he has always graciously made time for the legal community. For instance, he welcomes the interns of Project Self in Department C1. He explains to them the importance of the judicial branch of government and its relevance to their lives. He is a frequent contributor to Orange County Lawyer magazine and regularly serves as a mock trial judge for the Constitutional Rights Foundation. He has even been a recent past president of the William P. Gray Inn of Court, just to name a few activities. The list is long and the impact he has made is significant.
Access to justice has always been a touchstone for Judge Nakamura. Even before the court closure, Judge Nakamura initiated the rededication of the Lamoreaux Justice Center and approved the opening of family law courts in the North, Harbor, and West Justice Centers. He tirelessly worked to have the accomplishments of the Honorable Stephen K. Tamura, another outstanding trailblazing Orange County jurist, recognized through the renaming of the West Justice Center in his honor.2
For most of his life, Judge Nakamura has been an Orange County resident. He has witnessed the county’s growth and its periodic resistance to extending civil liberties to certain subpopulations of its many diverse inhabitants. His parents and their families suffered discrimination and hardships endured by Japanese Americans under internment during World War II. These experiences helped shape his unwavering commitment to equality under the law, not only in his capacity as a jurist, but as a member of this community. He understands that the vulnerable among us need the protection of a fair justice system. His staff, friends, and family know him as a person of deep conviction with a genuine concern for making the lives of others better. To this end, he has worked to improve mediation availability, demanded civility from the bench and bar, encouraged the growth of the Collaborative Courts, and fought for the much needed South County courthouse. He has always been approachable and never afraid to roll up his sleeves when taking on a new challenge. While his leadership throughout the pandemic has necessarily become more visible to the public, it is not of recent vintage. Indeed, in his public life, he has long led by quiet but effective example.
The closure of the courthouse predicated on public health concerns was not anticipated. No one believed that the closure would last more than a couple of weeks. In response, he quickly realized that a collaborative reimagining of access to justice while safeguarding constitutional rights was necessary. He reached out to Judicial Council and health officials for guidance. Utilizing online platforms early on, he solicited suggestions and critiques from bar leaders as to how the court could best continue to serve the public. After the stay-at-home orders from Governor Newsom, Judge Nakamura continued to hold the monthly bar leaders’ breakfast online as a means to facilitate an ongoing dialogue. He participated in OCBA-sponsored webinars and encouraged his fellow judges to do the same in a concerted effort to keep the legal community informed and aware of newly adopted procedures and administrative orders. He unhesitatingly answered all questions asked of him pertaining to the concerns of counsel. Judge Nakamura worked hard, “even during the many crises he has had to manage this year, to both keep the bar informed and embrace input from the bar’s leaders, to the benefit of all the practicing lawyers. We are grateful for his leadership,” said OCBA President Scott Garner.
A proponent of online technology, Judge Nakamura tasked all operations of the court to adapt all available proven platforms and software to create efficient but cost-effective means of case calendaring, case management, and even settlement conferences. Although the buildings were closed to the public, he stressed that the essential services and functioning of the court must continue. And those essential services did continue throughout the physical closure. Court staff were directed to work from home online. He encouraged his colleagues to employ online court proceedings whenever possible and to conduct litigation without exposing the lawyers, their clients, or witnesses to contagion through physical presence at a court facility. Online portals for paying traffic fines and mobile apps for self-help are but a few of the new ways in which the public now can access the court through its website from their homes.
The COVID-19 shutdown required the immediate addressing of health concerns that were directly in conflict with constitutional and statutory rights. This dilemma presented itself first in criminal cases where the rights of incarcerated defendants were juxtaposed with Orange County jail quarantine measures. The Honorable Cheri Pham, the Acting Criminal Supervising Judge explains:
While the Governor’s ban on mass gatherings and stay-at-home order have caused some courts to shutter their doors completely, under Judge Nakamura’s direction and close collaboration with our justice partners, Orange County Superior Court has never stopped protecting the constitutional and due process rights of parties in criminal actions during this unprecedented crisis. Even though our court “closed” on March 23, we continued to hear last day preliminary hearings and in custody arraignments through the use of technology enabling video appearances by both the defendants and attorneys and livestreaming for public access.
This innovative adoption of livestreaming by our court has even been commended by the ACLU as a step towards ensuring meaningful public access to the courtroom.3
Judge Nakamura has often commented that he was blessed with “gifted judges” to lead, an effective administration, and a dedicated court staff. Sometimes the best management is to “get out of the way” and “let their talent and efforts flourish.” He “created an environment of mutual trust that enables open communication such that direct conversations can occur, and even push-back is permitted, for the best outcomes,” relates David Yamasaki, the Executive Officer of the OC Superior Court. “Judge Nakamura has shown extraordinary leadership in navigating the Court to safely reopen, ensuring access to justice for our community. He understands the fear that surrounds COVID-19 and has been vigilant about safety and ensuring a healthy environment in all our justice centers.”
Prior to the soft reopening of the courthouse on May 26, the return of jurors to the courthouse presented a unique challenge. Safety for their health and their confidence in the measures taken were top priorities. Courthouses—much less courtrooms and their jury deliberation rooms—were never designed or built with social distancing in mind. Questions on the size of a jury panel and how attorneys could reasonably conduct voir dire needed resolution. Once selected to serve, jurors must not be distracted from their deliberations by fear for their lives. Judge Nakamura wrestled with these issues. He personally visited possible alternative locations where social distancing could be practiced. These included the Ebell Club of Santa Ana and the Santa Ana Council Chambers. He determined the maximum number of acceptable occupants for the elevators of the Central Justice Center (CJC) by measuring and riding them himself. Court facilities were measured and marked by the appropriate CDC approved distance. Unlike many other counties, jury trials have successfully resumed thanks to adherence to all the COVID-19 protocols, including social distancing, wearing masks, and sanitizing facilities.
It seems like an eternity ago when many of us were simply bumping elbows and sharing war stories over a cup of coffee at the cafeteria at the Central Justice Center. Like it or not, those days are undeniably over for now and may never return in quite the same way. While we hunkered down at home and worried about our law practices, loved ones, and the more mundane things such as where to purchase hand sanitizer, Judge Nakamura steadfastly continued to focus on keeping this branch of government independent and functioning. “He never missed a day of work during the court closure due to the pandemic but persisted in his uninterrupted dedication in finding solutions to these unprecedented times,” notes the Honorable Eric Larsh, our Assistant Presiding Judge. “With his hand on the helm, the Orange County Superior Court has implemented a reopening that outpaces the rest of the state and provides a model for other courts to follow.”4
The COVID-19 crisis is by no means over. Despite the soft reopening, the Superior Court still faces many difficult challenges which our bench, led by Presiding Judge Kirk Nakamura, will rise to meet. Throughout it all, he has remained, “humble but resolute,” observes the Honorable Lon Hurwitz, the Supervising Judge of the OC Family Law Courts. The changes that our 2020 Scoville honoree has overseen for the OC Superior Court have been dynamic and will continue to benefit not only our local community but all Californians long into the future.
(1) Alan J. Crivaro, The Honorable Kirk H. Nakamura: A Presiding Judge With a Big-Picture Vision for the Superior Court, 61 Orange County Lawyer 38 (2019).
(2) The Honorable Stephen K. Tamura was the 1973 OCBA Franklin G. West Award recipient.
(3 ) California ACLU Open Letter to The
Hon. Tani G. Cantil-Sakauye, Chair of the
California Judicial Council, dated June 15,
2020, Public Access Crisis Amid Coronavirus
Pandemic in California Superior Courts at 5; https://www.aclunc.org/sites/default/files/2020.06.15%20Judicial%20Council
(4) To those who know him well, Judge Nakamura is an avid golfer and fisherman. We hope that he will soon be able to enjoy these pastimes again. We are advised that there are many in the OC Court family who miss his “gifts” of the latest catch.
Alan J. Crivaro is a criminal defense lawyer in Newport Beach and a past Scoville Award recipient. He can be reached at email@example.com. The Honorable James J. Di Cesare is the Supervising Judge, Civil Panel of the Orange County Superior Court and a past Franklin G. West Award recipient