Moderate Picked for High Court : Appeals Judge Edward A. Panelli, Republican, Named by Governor

Countering suggestions that he is planning to stack the state Supreme Court with right-wingers, Gov. George Deukmejian on Saturday nominated Court of Appeal Justice Edward A. Panelli, described as a respected moderate to conservative, to fill a vacancy on California’s highest court.

“I’m confident that the people of California and our crusade for common sense justice will be exceptionally well served (by Panelli),” Deukmejian said in a Saturday radio address announcing the selection.

Deukmejian, a persistent critic of the high court’s current liberal majority, praised Panelli--his second appointee to the Supreme Court--as “dedicated to the time-honored principles of justice.”

“He recognizes that the essential purpose of that system is to punish the guilty, protect the innocent and provide peaceful, law-abiding citizens with freedom from crime and violence,” Deukmejian said. Panelli is a Republican.

Confirmation Process

Panelli, who would replace retired Justice Otto Kaus, must be confirmed by majority vote of the state Commission on Judicial Appointments, made up of Chief Justice Rose Elizabeth Bird, Atty. Gen. John Van de Kamp and Court of Appeal Justice Lester Roth. A spokesman for the commission said it will convene in five or six weeks to consider Panelli’s appointment. Approval is expected.

Panelli, 53, was born to Italian immigrant parents in San Jose, where his father was a laborer and his mother worked in canneries. His family moved back to Italy when he was an infant and he did not learn English until he was 5, after the family had returned to Santa Clara County. He now lives in Saratoga.

Legal experts in and out of the Deukmejian Administration and a review of Panelli’s opinions on the appellate court portray him as more conservative than Kaus, but not radically so.

A Liberal’s Viewpoint

Appellate Court Justice Marcel Poche, a liberal who served with Panelli on the appeals court in San Francisco and earlier on the Superior Court in San Jose, praised the appointment even though he frequently disagreed with Panelli. He described the new justice as “reasonably conservative.”

“My reading is that he doesn’t think he has the whole world figured out,” Poche said.

“I can’t imagine any judge familiar with Ed Panelli who would not be delighted that for the good of the judiciary that he got the appointment. He is experienced, knowledgeable, not doctrinaire. He takes it case by case. He is a man who knows how to change his mind. On an appellate court, that is important and rare.”

Predicting that Panelli could “be very influential in winning others over to (his) position,” Poche said, “you’re talking about a catalyst.”

The governor considered six candidates for the appointment. He passed up a woman and a Latino on the list and also bypassed other judges more conservative than Panelli.

“(Panelli) is not perceived as a right-wing ideologue,” said an Administration source familiar with the appointment. “There is nothing in his background to show he is a knee-jerk ideologue. . . . He is enormously well liked by prosecutors and defense attorneys, and that goes against the argument that the governor is trying to create a ‘litmus test’ for the court.”

By nominating Panelli, the source went on, Deukmejian can counter charges by the supporters of Bird that the campaign to turn her out of office next year is a right-wing effort to pack the court with conservatives. Bird is seeking reelection in November, 1986. Deukmejian has said that he will vote against her.

Statement by Bird

In an interview published last week, Bird denounced her critics as the “right wing” and said “they would like a chief justice who would pass all their litmus tests and they would like a majority of the court sitting here to be mirror images of themselves.”

Of the six candidates considered by the governor and evaluated by a State Bar committee, Panelli was the only one designated “exceptionally well qualified.” That is the highest rating on the scale.

The other five potential nominees were rated as being well qualified, the second highest rating, a source familiar with the appointment process said.

In a recent interview, Panelli described himself as being “restrained,” a term generally used to describe moderates who are hesitant to make sweeping changes in the law.

“You don’t come to these things with any kind of an agenda,” Panelli said. “If you do, then you don’t belong in the business. You look at the facts and law, case by case. I’m not coming with any hidden agenda.”

Admired Colleague

Panelli singled out retired state Supreme Court Justice Frank K. Richardson as one judge whom he admires. Richardson, who retired from the court in 1984, was appointed by then-Gov. Ronald Reagan in 1974, and was considered a strong conservative.

Deukmejian could have at least one more appointment to the Supreme Court before he runs for reelection next year. Justice Stanley Mosk, 73, who has been on the court for 21 years, has said he has not decided whether he will run for another 12-year term in 1986.

Mosk does not have to make up his mind until August. If he retires, Deukmejian could name his replacement. Other justices, who range in age from 49 to 58, have given no indication of plans to retire.

Kaus, 65, retired effective Oct. 16, but continues to hear cases by temporary assignment. Kaus, who was appointed by former Gov. Edmund G. Brown Jr., spent four years on the court and was viewed as moderate to liberal. He plans to return to private law practice in Los Angeles.

On 1986 Ballot

Panelli would sit on the court immediately after his confirmation by the Commission on Judicial Appointments, but would stand for election in November, 1986. Supreme Court justices are not opposed on the ballot, but voters are asked to confirm their appointment for 12-year terms.

Five other justices on the seven-member court will also be on the November, 1986, ballot. Only Justice Allen Broussard will not be on the ballot. Deukmejian’s other appointee, Malcolm M. Lucas, so far faces no significant opposition, suggesting that Panelli will be unopposed, too.

The campaign against the liberal Bird and Justices Cruz Reynoso and Joseph Grodin, also appointed by Brown, is expected to become a major election issue in the gubernatorial race. The victor in the governor’s race would appoint replacements for any justice who loses.

No Supreme Court justice has ever lost an election in California, but recent polls of voters indicate that Bird is trailing.

In the interview, Panelli appeared to distance himself from the argument by Bird’s supporters that justices should be turned out of office only if they are corrupt, senile or otherwise unfit for office.

Right of the Public

“A judge has to call them the way he sees them,” Panelli said. “The public has a right, if it doesn’t like the way you see them, to ask somebody else to do the job. The public has retained that right and I respect that.”

Panelli said perhaps his lowest point professionally came in 1982, when Deukmejian blocked his appointment by Brown to a new Court of Appeal in San Jose.

The appointment came late in Brown’s term, and Deukmejian, who was then attorney general and running for governor, was serving on the Commission on Judicial Appointments. At the time there was a vacancy on the three-member commission and Deukmejian blocked all three appointments to the San Jose court by deadlocking 1 to 1 with Bird.

Deukmejian said he supported Panelli, but opposed the two other Brown nominees for the three-member panel.

“That was one of the few times in my life when things didn’t work out,” Panelli said. “But I didn’t get upset. I kept thinking things would work, and they ultimately did.”

First Selection

Once Deukmejian became governor, he made Panelli his first appellate judge appointment, naming him to the Court of Appeal in San Francisco. Then, in 1984, the new court in San Jose was revived and Panelli was named to it.

Among his appellate decisions, Panelli has concluded that an intoxicated person could be considered to be driving under the influence of alcohol even if the driver’s car was not moving when the police officer arrived at the scene. In the case, the defendant’s car headlights were on, the engine was running and the vehicle was pointed in the wrong direction. That issue had not previously been addressed by a California court.

The high court reversed one of his rulings by a 4-3 vote earlier this year. He had concluded that a trial judge could sentence a 17-year-old youth to state prison for the murder of a girl in San Francisco without holding a hearing specifically to determine whether he could be helped by the Youth Authority. The court returned the case to the trial judge, with orders to hold the hearing.

Panelli was graduated first in his class from University of Santa Clara law school 30 years ago. He worked in a two-man law firm and had a general practice that he described as being “ethnic.” He represented Italian immigrants in business and criminal matters, and also had some large businesses as clients.

Attributes as Judge

He was appointed by Reagan to the Superior Court in 1972, spending time as a judge in probate, juvenile, civil and criminal cases, and rising to be presiding judge of the Santa Clara County trial bench. He was said to be among the more skilled judges in the state at persuading parties to settle complex civil cases.

Panelli, an avid runner whose car license plate is a play on the words “jogging judge,” is married and has three sons aged 22 to 28, including one who recently became a lawyer.

In addition to his involvement in Bar and judges groups, Panelli has been active in Rotary Club, Boy Scouts, the National Conference of Christian and Jews, the American Cancer Society, has been a trustee of the University of Santa Clara and the West Valley Community College District of Santa Clara. He also has been active in Italian-American groups in San Jose.

Supreme Court justices are paid $88,264 per year.

Dan Morain reported from San Francisco and Paul Jacobs from Sacramento.