Prosecutors Charge That Rose Bird Used a Form of ‘Court-Packing’

Like past California chief justices, Rose Elizabeth Bird picks judges to fill temporary vacancies on the state Supreme Court. And like her recent predecessors, she has chosen judges who have voted with her more often than not in close cases.

Temporary appointments, authorized since 1926, have not come under much scrutiny. But with Bird and five colleagues facing a vote on their retention in 1986, the anti-Bird California District Attorneys Assn. has accused her of a form of “court-packing”--a systematic bias in appointments to influence the outcomes of cases.

An Associated Press study of the voting records of Bird’s appointees did not reveal consistent patterns and shed no light on her motivations. But the results showed a marked disparity between the votes of temporary justices and regular members of the court that Bird did not choose to discuss.

The survey examined the 65 cases in Bird’s 8 1/2 years on the court in which one of her appointees filled a temporary vacancy and at least two regular justices filed dissenting opinions, evidence that the court was closely divided and members had to choose between competing viewpoints.

In those cases, temporary justices appointed by Bird voted with her position 58% of the time. In the same cases, regular members of the court agreed with Bird 40% of the time.

In four major rulings decided by one vote, the majority included a Bird appointee. They were:

- A 1982 reapportionment case allowing districts drawn by legislative Democrats to be used in that year’s elections. Bird’s opinion for a 4-3 court was joined by her appointee, Appeals Court Justice Stephen Tamura.

- A 1981 case allowing universities to give preference to minority applicants to professional schools. The 4-2 majority included Bird and Appeals Court Justice Joseph Rattigan.

- A 1980 case allowing victims of the drug DES who could not identify the manufacturer to sue all major manufacturers. The 4-3 majority included Bird and Appeals Court Justice Clinton White.

- A 1984 decision setting precedent for rulings upholding all of the state’s 1975 law restricting malpractice suits against doctors. The 4-3 court included two Bird appointees; one, Rattigan, dissented along with Bird, while the other, Appeals Court Justice Sidney Feinberg, joined the majority.

Bird did not comment on the study. But her staff noted that two of the previous three chief justices had similar records, and that Bird’s appointees are far more diverse than others in the court’s history.

“No attempt is ever made to predetermine the views of a particular assigned justice on a particular issue,” said Bird’s executive assistant, Stephen Buehl.

He offered no explanation for the tendency of temporary appointees to vote with the chief justice.

The District Attorneys Assn., in a “white paper” on the court in May, said Bird “has been utterly political in her choice of temporary justices.” The association cited several liberal judges whom Bird had appointed a number of times, but did not compare appointees’ voting records with those of regular justices.

Vacancies arise through retirement, illness or a justice’s decision not to take part in a case because of conflict of interest. Unlike the U.S. Supreme Court, in which temporary vacancies go unfilled, the California chief justice was authorized by voters in 1926 to pick temporary replacements from among active and retired judges in the state.

Avoids Deadlocks

The system allows the court to maintain a full complement of seven justices and avoid deadlocks. It is of particular use in times like the present, when a vacancy created by Justice Otto Kaus’ retirement may not be filled for several months with the confirmation of a successor nominated by Gov. George Deukmejian.

But because there are no restrictions on the appointment power, a chief justice presumably could tilt the scales in a crucial case by appointing a like-minded judge.

Given the number of appointments and the unpredictability of most judges, such an accusation is almost impossible to prove. But suspicions are bound to arise when a temporary justice votes with the chief in a big case.

Allowing a chief justice to fill temporary vacancies on the court “risks bias in the particular case and threatens the court’s reputation for impartiality,” said a 1980 article in the Stanford Law Review. The unidentified author recommended selecting replacements at random or leaving vacancies unfilled.

The article studied the voting records of temporary Supreme Court justices over a 25-year period starting in June, 1954, focusing on “close” cases--those in which at least two of the court’s regular members dissented.

During that period, the study said, Chief Justice Phil Gibson’s appointees agreed with him 85% of the time in close cases, while regular justices agreed with Gibson 50% of the time in the same cases.

Different Record

His successor, Roger Traynor, had a different record, agreeing with his appointees 52% of the time and with the other justices 54%. The study said Traynor frequently appointed a retired Supreme Court justice, B. Rey Schauer, who often disagreed with him. But the next chief justice, Donald Wright, Bird’s predecessor, agreed with his appointees 73% of the time and with the regular justices 54% of the time in close cases.

“If it was correct the way they did it, it’s correct the way she’s doing it, with the same degree of fairness,” said Ralph Gampell, a Bird appointee who heads the Administrative Office of the Courts.

Buehl, who responded in writing to questions submitted to Bird, said she had named more than 170 judges to fill temporary vacancies, including virtually every state appeals court justice and the first trial court judges ever assigned to the high court.

This “inclusive policy” contrasts with her predecessors’ practice of generally naming a few justices to fill all vacancies, Buehl said. He said Bird had also named 450 judges to fill temporary vacancies on appeals courts.

“Anyone who believes that the chief justice or anyone else could anticipate how about 620 different individuals would rule on as many different matters is simply and flatly wrong,” Buehl said. “The numbers alone belie this fallacious proposition.”