Eliminated ‘Cronyism’ : Bird Praised for Improved Administration of Courts

Chief Justice Rose Elizabeth Bird has found that nothing is easy when it comes to managing the California court system.

“People in the system were from Missouri and I had to prove myself every step of the way,” the chief justice said in an interview focusing on her administration.

But, as Bird enters her ninth year in office, some of her harshest critics in the court system grudgingly praise her for improving court administration. The praise comes even though her legal stands continue to raise the ire of some judges, politicians and the public and threaten to result in her defeat in the election this November.

One conservative appeal court justice, noting that in one of her first administrative moves Bird set up a Civil Service-type hiring process in the appellate courts, said: “She lifted the courts of appeal out of cronyism.” Others praised her for increasing their staffs of lawyers and librarians, and for generally treating the appellate courts equally.

Some judges refused to speak for attribution, noting that they vehemently oppose her legal rulings. “I’m not in the habit of throwing kudos her way,” said one Court of Appeal justice who complimented her administration but opposes her reelection and did not want to appear to be helping her campaign.

Under Bird’s administration, the courts have become more modern, staffs have grown, and she has secured legislative support for some broader changes in the court system.

But, based on dozens of interviews and a review of documents, it also is clear that Bird has expanded the authority of her already powerful position. And, although there have been improvements, bitter memories of her turbulent early years remain.

Today, many judges believe she remains inaccessible, relies too heavily on a closely knit group of advisers and passes over judges she believes are critical of her in favor of friendly judges when making appointments to various court-related commissions.

For her part, Bird is proud of her administration, and laments that in the swirl of attacks over her rulings, those achievements are ignored.

“If somebody wants to be critical of the way I dress, the way I speak, my personality, all the way up to my decisions, they get front-page headlines,” Bird said. But she said she gets no 1668441444because “it’s not interesting, it’s not sexy, it’s not negative.”

Bird is one of seven equals on the high court when it comes to issuing legal rulings. But, by law and tradition, the chief justice has extraordinary powers extending to every courthouse in California.

Her power flows from her role as chairwoman of the Judicial Council, a sort of board of directors that sets policy for the court system, creates budgets for appellate courts and lobbies for legislation.

Bird appoints members to Judicial Council commissions, which study such arcane but important areas as the rules governing appeals or how to reduce the backlog of civil cases in superior courts. She also is in charge of the Administrative Office of Courts with its 101 data processors, secretaries, lawyers and budget and personnel experts.

Her management style is one of contrasts, a mix of symbolic gestures and some solid achievements. There also is a sharp contrast between how she views herself and how others view her. She believes she is open to criticism. But even some friends and past and present members of her staff say privately that she tolerates little internal dissension.

‘Old Boy Network’

Although she has been in office longer than either of her two immediate predecessors, she holds to the view that there is an “old boy network” in the judiciary, one that she neither is part of nor wants to join. But as she has gained longevity, she has become more at ease among veteran jurists, and many judges now accept, without fully embracing, changes she has made.

One liberal justice recalled the “secretiveness” that marked her early years and alienated much of the judiciary.

“I think her door is still locked,” the justice said, “but she does have a tendency to laugh more.”

However, many judges believe Bird’s cordiality is only surface-deep.

“There is a lot of uncertainty among everyone about where they stand with her,” a liberal Court of Appeal justice said.

Her long hours have resulted in accomplishments. She won rapid approval from the State Bar and the Legislature to create a nonprofit corporation to recruit private lawyers to handle appeals for indigents, after Gov. George Deukmejian cut the state public defender’s office in half in 1983.

Cost: $13 Million

The new California Appellate Project and the private lawyers it recruits at rates of up to $60 an hour now handle the bulk of the death penalty appeals before the court. Bird and her aides helped found similar groups to handle lesser appeals. The programs will cost the state $13 million this year.

Liberal and conservative judges generally praise the idea. Justice Malcolm Lucas, the high court’s most consistent vote for the death penalty, said in response to written questions from The Times that the California Appellate Project “appears to be performing valuable services.”

Some of Bird’s ideas have taken longer to implement.

There is, for example, the idea she came up with in 1978 that the Supreme Court publish a book explaining the secretive process by which it produces its rulings.

Bird says the idea met with opposition from justices who felt that “the way we operated was our business and nobody else’s.” But other justices, who would only talk privately about the matter, could not recall any major controversy over the pamphlet. One seemed surprised that Bird believes she had significant opposition within the court.

Finally Comes Out

In any event, the 56-page pamphlet finally came out last year, after seven years of discussions. It is sort of a cross between a tourist guide and a lawyers’ manual, containing virtually nothing that was not already public.

While the booklet represents a victory, albeit a rather symbolic one, many other ideas have not become reality, in part because Bird herself has been so controversial. Nowhere is that more apparent than in Sacramento, where Bird has a presence through the Judicial Council lobbyist.

“The political realities,” said John Davies, the lobbyist, “are that it is an election year. You have a number of Republicans and some Democrats who do not agree with the decisions of the chief justice. That spills over into a general attitude.”

Davies, a friend of Bird’s since he was a student and she was a part-time teacher at Stanford Law School, believes criticism of Bird’s legal stands has “worked to my disadvantage.” Davies’ strategy is to keep a low profile, stay out of ideological fights and arrive at committee hearings armed with facts.

“That’s probably the only way they can do it,” said Assemblyman Alister McAlister (D-San Jose), who often is critical of Bird. “If you don’t have enormous power on your side, then you better be certain that you have got the facts and the law on your side.”

Signed by Governor

A top legislative priority of Bird’s has been a proposal many officials see as one of the most significant court system changes in decades--shifting the cost of running trial courts from county government to the state. The bill Bird supported to bring about that change has been signed by Deukmejian.

So far, however, the victory is hollow, because the governor, contending that the Legislature first must agree to other court reforms that he says would ease congestion in the system, has refused to include in his budget the estimated $350 million needed to fund operation of the courts.

Through the Judicial Council, Bird is pushing her own reforms in Sacramento to make the courts run more efficiently, but the legislative package has been moving slowly.

Meanwhile, despite her administrative efforts to cut congestion, the state Supreme Court’s backlog is worsening. Under Bird, the number of backlogged death penalty cases has remained at unprecedented levels. Since the death penalty was reinstated in 1977, the court has decided 57 cases, but more than 150 are pending. The justices have taken an average of more than four years to decide death penalty cases.

The justices have said the backlog can be ascribed in large part to a poorly written death penalty statute.

Speed Up Death Cases

The court has made changes to help speed death penalty cases. A clerk has been added to make sure that lawyers file their briefs on schedule. Each justice has agreed to prepare one capital case for argument each month, the final step before a decision is reached.

“These changes are welcome--but belated,” said Edward O’Brien, assistant attorney general in charge of death penalty cases.

Some legislators are proposing their own solutions to the death penalty backlog, including one that would require the justices to decide death cases 90 days after final arguments or lose their pay.

Court officials and lawyers involved in death penalty cases say a 90-day deadline is unrealistic. But although many justices have come up with broader proposals to relieve the backlog, they also confess they cannot agree among themselves about the proper course.

Reform Not For Short-Winded

“Procedural reform is not for the short-winded,” retired Justice Otto Kaus said, referring to death penalty and other matters.

In non-death penalty cases, Bird’s main foray into procedural reform came in 1984 when the Judicial Council backed a constitutional amendment passed by voters that gave the court more flexibility when deciding whether to grant review of a case.

Previously, the court was obligated to address all issues covered by a Court of Appeal decision. The justices now can select the issue that most interests them, while leaving the rest of the lower court opinion intact.

The procedure has been in effect for nearly a year, but there is little evidence that it has changed court operations. Justices say they will start using it more in time.

Bird has broken with tradition in carrying out the chief justice’s responsibility to select judges to fill temporary vacancies on the Supreme Court.

Symbolic Value

Past chief justices relied on Court of Appeal justices for the temporary assignments. Bird dips into the Superior, Municipal and Justice courts, believing those jurists become better trial judges after seeing how the high court operates. But the procedure also has a symbolic value.

“Their work is every bit as important as ours,” Bird said. “That was part of the statement I was trying to make--to have the judiciary see itself as an organic whole.”

Some other high court justices are less than enthralled. Trial court judges generally add “very little” to debate over rulings and rarely write opinions, said one justice, who added that “there is something incongruous” about having Municipal Court judges passing judgment on cases decided by Superior Court or Court of Appeal judges.

Bird’s appointments to the Judicial Council and its various committees reflect her effort to bring women and minorities into power. But many veteran conservative judges believe they are frozen out of decision-making.

Appointed by Two Browns

Records of Bird’s Judicial Council committee assignments show that in most years, 80% or more of the judges she appointed had been named to the bench by Gov. Edmund G. Brown Jr. or his father, Gov. Edmund G. (Pat) Brown, both Democrats. The remainder won office through elections, or were appointed by Gov. Ronald Reagan. Only a handful are Deukmejian appointees.

Bird has named a number of persons to several different posts. In 1985, a friend, Judge Florence Bernstein of the Los Angeles Superior Court, served on the Judicial Council, the council’s executive committee, three other council committees, plus the advisory board of the state judicial college, which trains new judges and gives courses to veterans.

“It is difficult being perceived as teacher’s pet,” Bernstein noted. But she praised Bird’s administrative prowess and said criticism of Bird is spiked with sexism.

“The chief justice is an uppity lady and that is always a problem for males,” Bernstein said. “. . . If one of their people sits up here, it is because of ability. If one of her people is here, it is favoritism and has nothing to do with ability.”

Named to Post in 1977

Bird, appointed by the younger Brown in March, 1977, came to the job with a reputation for being a tough, though aloof, administrator. She had been Brown’s Cabinet secretary overseeing the Agriculture and Services Department. Brown often praised Bird’s administrative ability.

But Bird had problems from the start as the state’s most powerful judge. At 41, she was young enough to be the daughter of many judges. In a system that rewards seniority, she had never been a judge.

She shunned many traditions, especially on the Judicial Council. She began convening council meetings in the rather drab State Building that houses the Supreme Court in San Francisco. Past chief justices had held the thrice-a-year weekend meetings in such posh resorts and places as the Hotel del Coronado in Coronado and the Ahwahnee Hotel in Yosemite.

Desire for Reform

Bird acknowledges that she probably moved too quickly after her appointment. But she came to the job with a desire for reform, coupled with a fear that she would have little time as the state’s most powerful jurist.

“I was conscious that I might not have a lot of years,” she said, noting that she had suffered a recurrence of breast cancer shortly after taking office.

But Bird believed change was imperative, especially in hiring. Seeing that friends and relatives of veteran employees were being hired as secretaries and clerks, Bird instituted a Civil Service-type personnel system.

“If we could have scandal in terms of the way in which we operated,” Bird said, “it would be much more difficult to withstand having to make decisions that are sometimes unpopular.”

To guard against scandal, Bird paid attention to details that other chief justices happily delegated. In doing so, she expanded her power--to the dismay of many people in the system.

Changed a Tradition

She changed a longstanding tradition whereby presiding judges of county Superior Courts selected judges to sit on Superior Court appellate divisions, which rule on appeals from Municipal Courts and Justice Courts. Tradition notwithstanding, the law says the chief justice must make the appointments.

In Bird’s view, the result shows how she opened the system to people who were not part of the power structure. But, in some instances, she used her appointment authority to help friends, creating animosity on the part of some presiding judges, who must assign judges to all other Superior Court divisions.

“I’m supposed to be running the court. But this is not a department that I can do anything about. It is a world of its own,” said Presiding Judge Thomas Johnson of the Los Angeles County Superior Court.

Bird is proud of her appointments, especially in Los Angeles. She said that for the first time, women and minorities serve regularly. Bird noted that in the past, some judges sat on appellate divisions for 10 years. She rotates appellate assignments every two years.

There are, however, exceptions. One is Florence Bernstein. In late 1984, as Bernstein was considering leaving the appellate division, Bird called Johnson to find out whether he would give Bernstein any one of three assignments she requested. Johnson gave her no commitment.

Bird had no power to persuade Johnson to change his mind. But she did have powers of her own. She simply reappointed Bernstein.