Stewart becomes 1st lesbian presiding CA appellate court justice

  • by Matthew S. Bajko, Assistant Editor
  • Wednesday November 30, 2022
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Former Presiding Justice Anthony Kline, left, administered the oath of office to Therese Stewart, the new presiding justice of the 1st District Court of Appeal's Division Two, which is based in San Francisco. Photo: Screengrab<br>
Former Presiding Justice Anthony Kline, left, administered the oath of office to Therese Stewart, the new presiding justice of the 1st District Court of Appeal's Division Two, which is based in San Francisco. Photo: Screengrab

Justice Therese Stewart of San Francisco has broken through another pink judicial ceiling with her confirmation as the first lesbian presiding justice on a California appellate court. She doubles the number of out justices presiding over a division of one of the state's six appellate courts.

A judicial review body confirmed Stewart as presiding justice of the 1st District Court of Appeal's Division Two after hearing testimony from the justice and several witnesses November 30. Governor Gavin Newsom had nominated Stewart for the post in October.

A UC Berkeley School of Law graduate, Stewart succeeds retired presiding justice J. Anthony Kline, who sat by her during the hearing Wednesday and presided over her enrobing ceremony. Having noted he is often told he is problematic for speaking too fast, Kline joked that Stewart was "the problem this time" after she flubbed a line of her judicial oath, requiring Kline to repeat it again for her.

"I am the problem," quipped Stewart, 65, a registered Democrat.

Once she had completed her oath of office, Kline asked Stewart if he could "kiss the bride." She joyfully replied to her mentor and good friend, "You may," and he gave her a congratulatory kiss.

"I am very honored to be appointed," said Stewart, who thanked the review panel and her colleagues for their support. Of Kline, she added, "His shoes, his metaphorical shoes anyway, will be very hard to fill. I will do my very best to do it."

Stewart, whose father's name is embroidered inside her robe, thanked her family for their support over the years, from her parents and stepmother to her siblings, as well as her wife and partner of 30 years, Carole Scagnetti, and their daughter, Natasha, who "both enrich my life."

In 2014, former governor Jerry Brown had nominated Stewart as an associate justice of the appeal court's Division Two. She became the first out female appellate court justice in the state and the second LGBTQ appeals court jurist after gay Justice James M. Humes of San Francisco, whom Brown had named to the appellate bench in 2012.

Two years later Brown elevated Humes to be the presiding justice of the 1st District Court of Appeal's Division One. Since 2018, Humes has been the administrative presiding justice of the First Appellate District.

Wednesday, Humes took part in voting to confirm Stewart as a member of the Commission on Judicial Appointments. Joining him in the unanimous vote were outgoing California Supreme Court Chief Justice Tani Cantil-Sakauye and Attorney General Rob Bonta.

"What impresses me the most about you is the way you have lived your entire professional career as an open and proud lesbian," said Humes. "You started your career 40 years ago when it was not a career builder to be out, far from it."

He had brought with him a copy of California Lawyer magazine from 30 years ago that included a profile of Stewart as one of the few out attorneys then working in the state. It prompted a slew of negative letters the publication published two months later, he noted.

"The reason I mention this is because being an openly honest lesbian in the legal profession was not easy and that was 30 years ago. Yet you were out 40 years ago," said Humes, who told Stewart that her "career has been marked by your leadership, honesty, courage, and authenticity. You have proven yourself many times over as a leader; I think you are going to be an exceptional PJ."

Stewart thanked Humes for his own trailblazing legal career as an out gay man.

"Thank you for all you have done," she told him. "A major part of my job will be to support you going forward."

Cantil-Sakauye praised Stewart for her "stellar work" in the judicial profession and as someone "wonderfully qualified" to lead a judicial court.

"I have watched you mentor and watched you inspire and bring along so many folks in the legal community or who aspire to be a part of the legal community," she said.

To Cantil-Sakauye, who will step down from the bench in early January, Stewart said she was "going to miss you," and praised her for her leadership particularly during the COVID pandemic, which disrupted the way the state courts operated over the past two and half years.

"You will go down as the best chief justice we have ever had," said Stewart.

Speaking on Stewart's behalf was her former colleague at the San Francisco City Attorney's Office Jesse Smith, currently the chief assistant city attorney. He noted how she put her faith in the hundreds of attorneys that worked under her leadership at the office.

"She did so with a soft touch," said Smith, adding that she put her "confidence" in the office's "many skilled deputies to do their jobs."

It is just one of the many traits Stewart possesses that will allow her to be an "excellent presiding justice," Smith told the review panel.

"Terry has a keen sense of the human impact from her decisions," he said. "This trait is critically important and demonstrates who Terry is."

Calling Stewart "a civil rights icon of the first order," Presiding Justice Alison Tucher of the 1st District Court of Appeal's Division Three hailed her colleague as an "empathetic listener" who is "fair even to those with whom she disagrees."

Foremost, said Tucher, Stewart is "always mindful of the big picture that we are here to work together in serving the people of California by justly and promptly resolving their legal disputes."

The State Bar Commission on Judicial Nominees Evaluation found Stewart to be exceptionally well qualified, chair Adam Hofmann disclosed at the hearing.

"She will easily transfer," said Hofmann, to her new role on the appellate court.

Led legal efforts on marriage equality

As a former deputy city attorney in San Francisco, Stewart had defended Newsom when he served as mayor of the city. Most famously, she was part of the legal team that defended Newsom in state court after he ordered city officials to marry same-sex couples against California law in the winter of 2014 shortly after he became mayor.

She went on to successfully argue for the right of same-sex couples to wed before the California Supreme Court, which overturned the state's anti-gay marriage statutes in 2008. The court's ruling led to the ballot fight over the issue and eventual voter passage that November of Proposition 8, a constitutional amendment that banned same-sex marriage in the Golden State.

She lost a second case before the state court seeking to overturn Prop 8 but did successfully argue it should not annul the some 18,000 marriages that had taken place prior to Election Day. After two same-sex couples filed a federal lawsuit against the homophobic proposition, the office of then-city attorney Dennis Herrera joined the case as an intervener, and Stewart was part of the legal team that worked on it.

In June 2013 the U.S. Supreme Court dismissed the case on a technicality, allowing lower court rulings striking down Prop 8 to stand. The resumption of same-sex nuptials began shortly thereafter in California.

Bonta, who worked for a decade with Stewart at the city attorney's office, praised her for the "trust and support" that she had provided the younger attorneys in the public law office.

"I have long admired and respected Justice Stewart," said Bonta, since they first worked together in San Francisco. "And that has only grown in the time since. I am very grateful to you Justice Stewart and to your commitment to serve."

In a Facebook post, current San Francisco City Attorney David Chiu praised Stewart's being confirmed.

"She brought leadership and courage to countless consequential cases in our Office, including the landmark marriage equality case. Congratulations, Justice Stewart!" he wrote.

Referencing the concerns of late over the health of American democracy, Stewart said she looks to California's judiciary for hope and inspiration when she holds her own doubts about the health of the country's enduring union.

"Sometimes I worry our democracy is straining at the seams, and we may lose our statute as a constitutional democracy in this nation. In those moments I look for hope and inspiration from California's judiciary," said Stewart. "Not only are we the largest but best justice system in the world, we are not ideological and we don't come with agendas. We are a very collegial bunch in most regards."

There are now five LGBTQ appeal court justices in the state. Gay Associate Justice Luis A. Lavin serves in the 2nd District, while lesbian Associate Justices Laurie M. Earl and Marsha G. Slough serve in the 3rd District and 4th District, respectively. Newsom appointed Earl to the appellate bench last year, while Brown had named Lavin and Slough as appellate justices.

As presiding justice, Stewart will earn $262,198.

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