Mary Mallen: In Her Own Words

MALLEN: I’m talking about Sandoval, that’s correct. And it’s also on his Web page, he says other things with respect to sunshine laws being applied to this branch of the government. And I think you go back to the Federalist Papers, Marbury v. Madison, and you understand that that’s just simply not the role of a judge.

My judicial philosophy is that judges are the guardian of our constitutional system. And the executive and the legislative branches make the law but the judge’s responsibility is to make sure that those laws don’t offend our Constitution. . . .

RECORDER: What was the context of the troublemaker remark? Was it about open government or sunshine principles?

MALLEN: The troublemaker remark is different than the open government. The troublemaker remark I believe came in the Bay Guardian interview. And at the end of the interview, I don’t know if he had an aside or something, but he said, “I’m going to be an activist judge. I’m going to be a troublemaker.” And that’s . . . inconsistent with my judicial philosophy. . . .

With respect to the judge -

RECORDER: Judge Mellon?

MALLEN: Judge Mellon. Not Judge Mallen. With respect to the judge, the reason why I challenged Judge Mellon is, it’s well-documented he had some issues in the courtroom with respect to the district attorney’s office and also with respect to the sheriff’s department.

RECORDER: I thought his issues were more with the public defender?

MALLEN: Excuse me. I’m sorry, I’m sorry, with the public defender’s office. And so judicial demeanor, I believe, is an important quality of a judge, and I believe that a judge, obviously, expects that there should be respect for the bench, but I think respect should also flow from the bench. And I believe that respect has to flow to the attorneys, but to the court staff as well. And not only because it makes the court run more efficiently but because common decency requires it.

And so the issues that came up with the public defender’s office were, they were major issues. And they were large enough that he was removed from the Hall of Justice and sent to civil court. And there were issues that came up with the sheriff’s department that just, in my opinion, shouldn’t happen in a courtroom, I think.

RECORDER: Going back to your experience with the public defender and the district attorney, can you tell us how long you worked at each office, what your main assignments were, and exactly how having those two different perspectives, what that creates for you?

MALLEN: With respect to the two different perspectives, I think how it’s assisted me is that, when I would get a police report, I’d read it from both sides. And really I read a police report in the same way that – I’ll use a basketball analogy – a basketball player sees the lane, or a chess player sees the board, you see the next moves.

When I read a police report, I know what the district attorney, what they’re bottom line’s going to be. I know what the bottom line of my client’s going to be. I know what the judge is going to do. And I know what jurors I need if I’m going to take it to trial. . . . I know how to advise my client. I know how to pick out the detrimental facts. And I’ll be honest with my client to explain those facts to him. And I think that comes as a result of having worked in both the district attorney and the public defender’s office, and knowing the internal structure of both. And knowing with respect to a district attorney’s office, knowing what is required from the top, and how far you can stretch a case.

My experience in the district attorney’s office, I went up to the preliminary hearing level, and I did probably 75 felony preliminary hearings at all levels, except homicide and rape. With respect to the public defender’s office, I was in that office for almost seven years, and I did all levels. And I had a combined total of 24 trials, excuse me 25 trials. And of those 25 trials, 24 of those trials met my pretrial objective, and in the 25th trial my client didn’t take my advice, and we lost. . . .

RECORDER: I don’t know if you started in the DA or -

MALLEN: I started in the district attorney’s office.

RECORDER: And why did you switch?

MALLEN: It was always my ambition to run for judge. And so when I got out of law school I went to the board of supervisors and I did some volunteer work. . . . And then Gavin Newsom hired me as his legislative assistant. And I did that for about 18 months. But it was my ambition to – I mean, I went to law school because I wanted to be a judge.

So I left politics and I went to the district attorney’s office. My intent was to run for municipal court judge. The requirement at that time, it was a five-year [Bar membership] requirement. I’d been a member of the Bar for two years. And then my expectation was I would work in the district attorney’s office for the remainder of the three years and then run for the municipal court.

What happened, I think it was about three or four weeks after I became a district attorney, was that the courts merged, and the municipal court disappeared, and the requirement then was extended to 10 years. I didn’t want to spend that amount of time in the district attorney’s office.

And this goes back to something that my father had said to me when I’d discussed with him my interest in pursuing my career in the legal arena. He said if you want to be a judge, the district attorney’s office is a good springboard. But if you really want to learn the law, the public defender’s office would be the place to go. Because of the volume of their work and the practice. . . .

And I was really fortunate that [former Public Defender] Kim Burton agreed to hire me because it’s difficult to make the leap from one office to the other, and there’s a lot of people that don’t appreciate when an individual does that.

RECORDER: You mentioned your ambition to run for judge. Obviously, there are a lot more spots filled by appointment. Did you seek an appointment with this governor or the previous governor?

MALLEN: I wasn’t eligible [during the term of] the previous governor. And that’s a bit of the reason I went to the board of supervisors first. I mean, I clearly understand the process because my father went through it. And you’re either appointed or you’re elected. My father ran for office, for an open seat, against another municipal court judge, and that judge won. And then he was appointed shortly thereafter, largely as a result of his performance during that election. And he was appointed by Jerry Brown at the end of – I think, either his last appointment or his second-to-last appointment. So I’ve always understood the process, and I’ve understood the benefit of running, even if you don’t succeed.

RECORDER: Earlier, the campaign finance disclosure forms, you didn’t turn them in by the expected date. Have they been filed since then?

MALLEN: They’ve been filed since then.

RECORDER: And can you tell us how much money you’ve raised?

MALLEN: I’ve raised – I’ve put in a considerable amount of money. And then I’ve raised, and I think all told, it’s 20-something.

RECORDER: To play devil’s advocate, the fact that you missed the deadline for that doesn’t suggest that you’re very attentive to details. How do you respond to that?

MALLEN: No, I think I’m running – there was actually on the form, there was a typo on the date. And so it was because of that typo that I missed it.

RECORDER: When did you file them?

MALLEN: I filed them shortly after. I think it was within a few days after. [Editor's note: Mallen's forms are file-stamped April 4, 13 days after the March 22 deadline listed by the S.F. Department of Elections.]

RECORDER: You mentioned you had 25 trials as a public defender. Were those misdemeanors or felonies or a mix?

MALLEN: They were a mix of – they were also in the district attorney’s office as well. . . . I have tried a sexual assault, a homicide – a 192 – an armed robbery – that’s three armed robberies. A DV, animal abuse. Those are the felonies. I’m missing some. . . . And I’ve represented hundreds of clients in serious felonies – in rape cases, in attempted murder, Three Strikes. So I have the courtroom experience. For the better part of the last 10 years I’ve been in court almost every day.

RECORDER: Gerardo Sandoval has made diversity . . . an issue in the race, in particular ethnic diversity, Hispanic diversity. . . . Do you think diversity in general is an important issue?

MALLEN: When you put on that black robe, it doesn’t matter if you’re Republican or Democrat, your race, your gender or sexual orientation. You’re an independent, impartial judge. You go back to whether or not I put in an application with the governor. As I said earlier, my father was either Jerry Brown’s last appointment or second-to-last. And since that time we had the brief – what was it – five years of Gray Davis. Really in the last 26 years – my father was appointed in 1982 – in the last 26 years we’ve had a Republican appointing the San Francisco bench. . . .

So if you look at what the result of that has been, the bench isn’t diverse. And I’m gay. I think there’s one – people who were identified as gay before they became judges – I think there are six of those people, and five of them were elected and one was appointed. And that’s been something that Sandoval has talked about as well. So I think it is important. . . .

I think it’s important that the judicial body reflect the population of the community it serves. Because, as I said, they’re the guardians of the law, and a law is only a law if we in the society agree that it’s going to be. So I think when people come into the courtroom they need to be able to interact with the judicial system. And if the judge is someone that they can’t identify with, I think that’s an important issue.

RECORDER: So if diversity is important, I think Sandoval, if he were here, would probably say, “Well, but there are six or seven or however many openly gay or lesbian judges on the court. There are only two Hispanics. So if diversity’s important that would militate toward me, and not toward you.” So how would you respond to that?

MALLEN: Because it’s not the only qualification. And with respect to the number, if you look at – the superior court is a California – you’re a California office holder. And if you look at the number of gay candidates in the state of California, versus the number of Hispanic candidates, then it’s more even. But I agree with him. But you also have to look at the quality of the candidates as well. . . .

RECORDER: You said you were concerned about Judge Mellon’s demeanor. Can you tell us a judge on the San Francisco bench today whose demeanor you would model yourself after?

MALLEN: I’ll tell you that there were, I believe, about 20 candidates [potentially] on the ballot this election. And I actually found out that Gerardo Sandoval was going to be in the race on the day that I was taking my papers out. And over that weekend I went back and I looked at the list of candidates, and he was the only one that I would challenge, and it was based on the judicial demeanor.

And it was also based – I have, you know, as I said again, my dad was a judge, and I have a lot of respect for the bench – and so before I challenge a sitting judge I need to think about it really carefully and there had to be a reason. So he was the only one there was a reason.

There are on the bench several judges that I respect. There’s a judge whose politics is probably not the same as mine. But I’ve done two trials with him. And he’s given me, I think, two of my best trials. And I have great appreciation for his judicial demeanor.

RECORDER: Who’s that?