Kaus to Retire From State Supreme Court : Deplores Strident Attacks on Justices in Anti-Bird Effort

State Supreme Court Justice Otto M. Kaus, one of the most influential but least known members of the high court, announced his retirement Monday, citing as one reason the increasingly strident attacks on the court by forces who hope to unseat Chief Justice Rose Elizabeth Bird.

His retirement will give conservative Gov. George Deukmejian a second appointment to the predominantly liberal court and might eventually enable the governor to appoint a majority of the justices.

Although he is not on the ballot in November, 1986, Kaus, 65, said the highly charged atmosphere engulfing the court takes some of the gloss off the job.

“You cannot forget the fact that you have a crocodile in your bathtub,” Kaus said in a telephone interview Monday. “You keep wondering whether you’re letting yourself be influenced, and you do not know. You do not know yourself that well.”

Because attacks on the court often focus on specific rulings, political pressure potentially could affect the outcome of cases, and that is unacceptable, he said.

“You should remove any kind of temptation,” Kaus said, adding that the federal system of life-long tenure is preferable to California’s system, in which justices must face election periodically. “This is the kind of thought that should not even enter your mind. . . .

“I concluded, frankly, that it is very, very difficult to reconcile the appellate process with the necessity of facing a retention election, if your opinion is going to become an issue.” Kaus won retention in 1982 with 56% of the vote.

Although the attacks on the court played a role, Kaus said, his decision to retire was “brought to a head” recently when both his mother and mother-in-law became seriously ill, requiring intensive care.

He said his wife “needs me around more than just weekends.” Kaus commutes to the court’s headquarters in San Francisco during the week and returns to his Beverly Hills home on weekends.

With Kaus’ retirement, which will be effective Oct. 16, Deukmejian will be able to make another appointment to the state’s highest bench. He has already appointed Malcolm M. Lucas, the court’s sole conservative.

Justice Stanley Mosk, 72, who has been on the court for 21 years, has been considering retirement. Polls show that Bird, who will be on the 1986 ballot along with Deukmejian, is trailing in her effort to win retention. If Mosk retires and Bird loses and Deukmejian wins reelection, the governor would have a fourth appointment and thus a majority on the seven-member court.

Confidential List

Justices Joseph Grodin and Cruz Reynoso are also under attack by conservative Republican politicians and a group called Crime Victims for Court Reform led by conservative political consultant Bill Roberts.

Confidential List

Deukmejian, who did not comment on Kaus’ retirement, has kept the names of his candidates confidential. If Deukmejian follows tradition, he will be likely to pick a Southern Californian, since Kaus is from the Los Angeles area.

Several judges, lawyers and politicians speculated that among the possible selections are Court of Appeal Justices Armand Arabian, a close friend of Deukmejian; David Eagelson, also a friend and former presiding judge of the Los Angeles Superior Court; John Arguelles, the first Latino appointed to the state Court of Appeal; and Campbell Lucas, who like his brother, Malcolm Lucas, was a law partner of Deukmejian. All are viewed as generally conservative. They are from Los Angeles and were named to the state Court of Appeal by Deukmejian.

Among other frequently mentioned names are Edward Panelli of the Court of Appeal in San Jose; Gordon Cologne, who recently retired from the Court of Appeal in San Diego, and Los Angeles Superior Court Judge Ronald George. Panelli was appointed by Deukmejian. Then-Gov. Ronald Reagan appointed Cologne and George.

Kaus’ retirement was announced in a five-paragraph release issued by Bird, who said: “I shall miss his counsel and I hope that the coming years are enjoyable ones for him.”

Work Praised Widely

Although his retirement was long rumored, it was a surprise even to some members of the court. As word spread, his work on the court was praised widely. William P. Wood of the California District Attorney’s Assn. said Kaus represented a “common-sensical view,” adding, “We’re sorry to see him go.”

“That’s a great loss to the court,” Mosk said. “He is a very good scholar and excellent craftsman. I certainly will miss him. The whole legal community of California will experience a great loss.”

“This leaves a gaping hole in the center of court,” said Stephen R. Barnett, a law professor that the University of California, Berkeley. “He has been the most distinguished justice on the present court, and one of the most distinguished in the country.

“His opinions have shown a wit, brevity, common sense, lawyer-like finesse and moderation that will all be badly missed.”

At the time of his appointment, Kaus was viewed as a solid selection. He brought to the high court more than 20 years of experience as a judge, having been appointed as a trial judge in 1961 by Gov. Edmund G. (Pat) Brown, who appointed him to the Court of Appeal in 1966.

He even won approval of then-Atty. Gen. Deukmejian, who cited Kaus’ 400 Court of Appeal opinions, saying they showed he had “exercised a tremendous amount of common sense.”

‘Won’t Even Notice Me’

At one point in his confirmation hearing, he said in response to a question from Deukmejian, “I’ll be so restrained on the court you won’t even notice me.”

As it turned out, Kaus, a native of Austria who fled the Hitler regime with his parents, remained unknown outside the legal community. A recent poll showed him to be the least known member of the court, prompting ribbing from his colleagues.

On one recent morning, he stopped to buy croissants for his staff, holding up a long line of customers. When he told Grodin that some of the other customers appeared to be angry with him, Grodin said it made little difference, for “nine out of 10 do not know who you are.”

Although considered a liberal, he formed what amounted to a centrist position on the high court, often leading the narrowest of majorities in moderate rulings.

Probably Kaus’ most significant decisions came in a series of 4-3 rulings upholding the 1975 medical malpractice award limitations that the Legislature passed in response to soaring judgments against doctors.

Country’s First Ruling

Kaus also wrote the majority opinion in a 1982 case that dealt with the emerging issue of “wrongful life.” The case was a malpractice action involving a child born with a genetic disease, allegedly because a doctor failed to note that the family had a history of genetic illness.

Kaus came up with a compromise. His opinion, the first in the country to deal with the issue, allowed for limited damages amounting to the cost of caring for the child but not more exorbitant general damages.

He reasoned that it was impossible to determine whether the child “in fact suffered an injury in being born impaired rather than not being born.”

As they did in the malpractice cases, Bird and Mosk dissented, taking a more liberal view and criticizing the majority in a dissent for its “modest compassion.”

Kaus generally sided with the majority in reversing capital cases. He dissented in four of the 30 or so capital cases he heard, however, concluding generally that he would have affirmed the death sentences. He also was in the majority twice when the court affirmed death cases, although one of those cases was later reconsidered by the court and ended up as a reversal.