CALIFORNIA STATE JUDGE HERBERT M. DONALDSON PASSES - EARLY LGBT RIGHTS PIONEER
5 December 2008 
California State Judge Herbert M. Donaldson. Donaldson initially resisted appointment
to the State bench by Governor Jerry Brown. Herb insisted Municipal Court would keep
him closer to street youth providing them a possible model. Brown prevailed,
convincing Donaldson State Court would deliver fuller statewide impact.
Young Herb Donaldson in SFPD van
PHOTO COURTESY LOUISE SWIG
California State Judge Herbert M. Donaldson passed quietly at his San Francisco home today atd 4:40 p.m.
Donaldson was a pioneer LGBT rights activist working side-by-side in the Mattachine Society with Daughters of Bilitis founders Phyllis Lyon and Del Martin.
Those early gay and lesbian organizations already were in place in San Francisco but organized cries for equality to replace co-existence was confined to gay women and men themselves.
That changed in 1965 San Francisco.
Local religious leaders of repute began suggesting equality was due everyone even on an earthly homophobic world.
With eye-popping audacity they formed the Council on Religion and The Homosexual and on a sparkling Saturday evening held a public fundraiser at what is now the California Culinary Academy on Polk Street.
UPPITY HOMOSEXUALS SCARED THE HORSES
Police reacted with what was then a common intimidation.
They set up spotlights across from the event to expose gathering homosexuals.
A good half of those invited still entered.
Then police entered to check event permits, Donaldson recalls.
Event permits were in order.
Then police returned to check health permits, also fully verified.
Police made their fourth attempt to suppress the gathering, returning to enter again.
It was then Herb Donaldson said no more.
RUIN
After Donaldson was released from jail he learned the police had sent a copy of his arrest report to the California Bar Association and the youth thought his career was shattered.
IRONIC JUST DESERTS
The police were not yet finished with homosexuals purported fully human by undismissible voices.
Homosexuals were a blight on San Francisco, began a police public relations campaign.
The department sent press releases, published worldwide, alerting humanity that an estimated 75,000 homosexuals had seeped the City.
As a result of the ‘God damn it,’ and worldwide public relations ridicule, the first great influx of LGBT sisters and brothers to San Francisco began.
NO RUIN HERE
Herb Donaldson was not ruined.
His career advanced and in 1983 Governor Jerry Brown created Donaldson a judge.
Along the way he founded Capricorn Coffees becoming a successful businessman, a free flowing philanthropist to progressive causes and countless LGBT youth who wanted to become politically active.
Only recently retired, Donaldson presided over the California Mental Health Court which he created.
TIMELESS CONNECTION
Through the seeming solitude others stood with Donaldson both at his side and across the generations.
Living reminders encircled him last night with tribute.
The American Civil Liberties Union (ACLU) first kicked back at homophobia in 1936 by challenging a Boston ban on the lesbian themed ‘The Children’s Hour.’
The City of Boston prevailed, the stage play was banned, but ACLU commitment grew.
It continued to represent sporadic LGBT cases. By 1956, gay representation was a recurrent ACLU effort. They successfully represented Lawrence Ferlinghetti whose City Lights Book Store homoerotic ‘Howl’ brought another blackout attempt. They successfully represented attorney Donaldson as well.
After hearing the evidence Judge Leo Friedman instructed the jury to acquit Donaldson, and the jury came back saying they would done so anyway.
In 1986 the ACLU formed a special LGBT division now staffed with 22 attorneys in four cities.
Matt Cole, who authored San Francisco’s first LGBT anti-discrimination ordinance and now heads the national ACLU LGBT Special Project, led a tribute to Donaldson on June 22 2006..
A FUNNY THING HAPPENED ON THE WAY TO JAIL
“A funny thing happened on the way to jail - the next day Herb Donaldson was an ACLU client because Herb Donaldson was the lawyer who planted his feet and stood in that door and said to the San Francisco Police enough is enough,” smiled Cole.
“They jury went out and deliberated and came back not long afterward and announced that they had found the defendant not guilty. And that they would have done it even if the judge hadn’t told them to do it.
“The thing is that was a critical moment in San Francisco history.
“Some important things started to change when a judge and a jury said that you couldn’t be convicted as a criminal for standing up to that kind of police harassment.
The firm joined with the ACLU in the 1936 ‘Children’s Hour’ lawsuit against Boston Ban.
A DIFFERENT WORLD
“There were no gay parades, no gay proclamations, no gay exhibit at the library, there weren’t gay people in courses in the high schools or in the grammar schools. There were no openly elected officials, there were no openly gay judges. There weren’t any openly gay lawyers in San Francisco in 1965.
A RISK TAKEN
“What this man did was to take his career and his life that he had at that point in his hands and put it all at risk.
“To stand up and say enough is enough.
“That was the beginning of the end that gay people had to cower in the shadows in San Francisco.”
I DIDN’T SAY ENOUGH IS ENOUGH
“First I want to thank the ACLU for inviting me to be an honored guest,” Donaldson responded.
“Secondly I want to correct one thing that Matt said.
“I didn’t say enough is enough.
“I said, ‘Well God damn it.’
“And I learned a lesson. I always thought that when police were arresting you they would tell you what they were arresting you for.
“Instead they simply hauled me out to the paddy wagon without saying a word.
“So I learned a few things. It was great experience, it was one of the high experiences because at the time I actually thought my career was over.
“Because when the police filed their report they put at the bottom ‘copy to the State Bar of California’ and I thought ‘well maybe this is it’ because thanks to the ACLU I was well represented.
“The ACLU headquarters were in a small group of offices at First and Market at that time. They actually weren’t super offices - they were a little dingy.
“And Marshall Krause came forward and asked if we needed representation. There was another lawyer, actually two lawyers who were arrested as well after I was as well as a housewife who had the temerity to ask the police if they had a ticket (to the event).
“Thanks to the fact that the ACLU came forward and represented me most of criminal BAR down at the Hall of Justice signed on as ‘of counsel’ for the trial.
“And I remember that well because… each juror was asked they knew any of these lawyers and there was a whole bunch of lawyers that people did know.
“Judge Leo Friedman was the judge and I’m still grateful to the fact they he shortcutted the trial and got the verdict of not guilty.
“I want to tell you a couple of things about this which you may find amusing.
“The police I think found they were in a bind. So they put out the word to the newspapers that this was a real problem for San Francisco because San Francisco had 75,000 homosexuals.
“Well, this went out on the wires.
“And I can just see some of your friends looking at the wires and saying ‘this is the promised land! Let’s go there!
“And in fact we had a good gay population. There was a large number of us but after that it increased radically.
“The ACLU has been in court in my life since then. I’ve watched them grow from basically a small office. It has grown here in Northern California. I want to support it and I want to continue to support it.
“The turnout here today indicates to me that a lot of people really do support this really worthwhile organization. I get updates all the time on the computer as to what the ACLU is doing, what cases are being decided and so forth. There is a lot of activity in this country that the ACLU is associated with.
“The fact that the ACLU is associated and prosecuting some of these cases really puts us, those of us in the GLBT community, where we know we have an ally that’s not going to fail us. It’s not going to turn its back on us. It’s been with us for the past 50 years and even before that.
“I’m proud to be a member of the ACLU and I want to thank all of you for coming tonight.”
Judge Donaldson was born in Baxter, West Virginia in 1927. His father died in a coal mining accident when Judge Donaldson was a year old, and his destitute mother took him and his two brothers to live with her family in Wisconsin during the Great Depression.
Judge Donaldson enlisted in the Navy at age 17. During and after World War II, he served stateside at bases in Alaska, Rhode Island, and Washington, D.C. He remained in the Navy for six years, during which time he married high school friend Margaret Pettigrew. The couple had no children, but for several years they raised Judge Donaldson’s young cousin as a son.
Judge Donaldson left the Navy to attend the University of Wisconsin, where he studied philosophy. He received a bachelor’s degree in 1953 and was awarded a scholarship to Stanford University Law School. His first job after finishing school in 1956 was as a staff attorney for the Southern Pacific Company. But four years later, realizing that a corporate career was not for him, he started his own law office specializing in criminal law.
During this period Judge Donaldson acknowledged that he was gay, ended his marriage of 14 years, and met his longtime partner, Jim Hardcastle, with whom he started Capricorn Coffees, a small coffee roasting business.
In the early 1960s, Judge Donaldson became involved with the gay and civil rights movements. He worked with the important homophile groups of the day, including the Mattachine Society, League for Civil Education, and Society for Individual Rights. A friend of late publisher Bob Ross, he incorporated the Bay Area Reporter in its early days.
Judge Donaldson was active with the Council on Religion and the Homosexual, an alliance of gay leaders and progressive clergy members started by Glide minister Ted McIlvenna. He was one of three lawyers (along with a ticket-taker) arrested in a raid of a CORH fundraising ball at California Hall on New Year’s Eve 1965, after refusing police entry.
The police action opened the eyes of liberal heterosexuals to the persecution of the city’s LGBT population. Under pressure, the police department reduced cruising arrests and harassment of gay bars, and homophile organizations began making inroads into local politics.
“That event was really a major turning point in gay life, putting gay rights issues on the progressive civil rights agenda in San Francisco,” said Stryker.
Judge Donaldson feared the arrest would end his legal career, but in 1967 he was offered the position of chief counsel for the San Francisco Neighborhood Legal Assistance Foundation, which helped impoverished clients deal with matters such as landlord-tenant disputes and social service appeals.
At the same time, Judge Donaldson dealt with some of the earliest gay and transgender legal cases, involving issues such as estate disposition and hospital visitation for same-sex couples. He established a legal procedure for allowing transgender individuals to change their names, setting an enduring precedent.
After three years, Judge Donaldson left the legal aid agency to devote time to his coffee business. After Hardcastle’s death in 1978, he continued in the business until a friend told him that Brown was looking for a gay man to appoint to the bench in San Francisco. On January 1, 1983, as Brown was leaving office, Judge Donaldson was sworn in as a municipal judge, becoming the first openly gay male judge in the state.
“Herb was a caring person to people in all walks of life,” said longtime friend Esther Marks. “He was also an excellent judge. He had the rare combination of high intelligence and common sense.”
Judge Donaldson advanced to the position of Superior Court judge, presiding over both criminal and civil courts, before officially retiring in 1999. But this was not the end of his legal career. Having taken note of the number of mentally ill people among the ranks of criminal defendants, he became the judge for a new once-weekly Behavioral Health Court, instituted by lesbian Judge Kay Tsenin in 2002.
Judge Donaldson said his work with the BHC was “one of the most fulfilling periods of my judicial career.” In a December 2004 interview, he told the B.A.R. that being a longtime active member of the gay community helped him empathize with members of marginalized populations facing criminal prosecution.
“Judge Donaldson dedicated himself to changing lives – in this case the lives of those who suffer from mental illness and cycle endlessly between the jails, the streets, and psychiatric emergency services,” said BHC Deputy Public Defender Jennifer Johnson. “He permanently changed the way our criminal justice system approaches these clients. BHC and the San Francisco community are forever marked by Judge Donaldson’s compassion, his sense of fairness, his sense of humor, and his desire to restore dignity to people’s lives.”
The BHC was integrated into the city’s regular court system in 2006, but Judge Donaldson continued hearing special assignment cases. He remained devoted to community service, sitting on the Redistricting Task Force that established new supervisor districts in 2002, and serving on the boards of the San Francisco Mental Health Association and Bethany Center Senior Housing. He was also a philanthropist, supporting causes ranging from the American Civil Liberties Union to the San Francisco Symphony to California Pacific Medical Center.
Judge Donaldson was a founding member of Bay Area Lawyers for Individual Freedom, an LGBT legal organization. He received many awards over the course of his career, including the Bar Association of San Francisco’s Lifetime Achievement Award and the Alice B. Toklas LGBT Democratic Club’s Human Rights Award. Judge Donaldson lived in an apartment on Castro Street, and when not working, he enjoyed playing the piano and spending time with his cats.
“Herbert was loved, respected, and admired by people far and wide,” said longtime friend and companion Louise Swig. “It made no difference to him whether someone had power or prestige, or was a homeless person down on his luck. He treated everyone with equal consideration and courtesy. He was a national treasure.”
Judge Donaldson is survived by Swig, his brother Donald Donaldson, cousin Terry Haines, and three beloved cats. He requested no funeral, but a memorial service will be held at Herbst Theater, 401 Van Ness Avenue on Friday, January 30, at 6 p.m. He requested that donations in his memory be made to CPMC’s Interventional Endoscopy Service or to People for the Ethical Treatment of Animals.
ODE TO HERB DONALDSON
RELIGIOUS DOCTRINE
ITSELF NO LONGER
DUE RESPECT
NEVER AGAIN
See Related: MARRIAGE EQUALITY
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