Lawyers in Major L.A. Firm Aiding Bird’s Opposition

Several members of one of the state’s leading corporate law firms, Los Angeles-based O’Melveny & Myers, have joined forces with opponents of California Chief Justice Rose Elizabeth Bird in the preparation of a “white paper” attacking the opinions of Bird and two other justices in several civil cases decided by the court.

Released this week, the lawyers’ critique focuses on the opinions of Justices Bird, Joseph R. Grodin and Cruz Reynoso, the three members of the court who have been targeted for defeat by conservative groups who have concentrated up to now on attacking the justices’ record of overturning death sentences.

The three justices are among the six of the seven-member Supreme Court who are up for reelection in November.

The 26-page white paper argues that the three justices’ opinions in civil cases “have done violence to the separation of powers in this constitutional democracy” and says that the justices see their role “not as jurists interpreting the laws but as super-legislators. . . .”

The paper emphasizes the impact of the justices’ civil decisions on business. It says that the opinions have “greatly expanded liability for landowners, increased labor costs for employers, allowed increased taxation for all Californians and directly contributed to the skyrocketing cost of liability insurance for business and individuals.”

The paper reflects a view expressed during the last year by both Gov. George Deukmejian and President Reagan that the California Supreme Court under Bird has been unfair to business.

In a speech to the U.S. Chamber of Commerce in June, Reagan cited an opinion by Bird in a traffic accident case as an example of how a number of courts around the country are placing unbearable financial burdens on insurance companies.

The white paper was prepared in cooperation with Crime Victims for Court Reform, one of the two principal groups campaigning against Bird, Grodin and Reynoso. Janet Byers, a spokeswoman for Crime Victims, said the white paper was sent to 85 newspapers, television and radio stations around the state.

Responding to the accusations of the latest position paper, Steven Glazer, spokesman for the Bird reelection campaign, said Wednesday, “their report is a rehash of discredited and abandoned special-interest complaints.

“They take the unfortunate view that every pro-consumer or pro-victim decision is anti-business,” Glazer said, contending that the authors of the white paper want judges who “uphold the corporate bylaws first and the Constitution second.”

The paper released this week was written by five O’Melveny & Myers lawyers under the supervision of senior partner Charles Bakaly, said Daniel Livingston, one of the lawyers who participated in the project.

Bakaly has been an active member of Crime Victims for Court Reform, which has been in charge of distributing the latest white paper. Bakaly also is a member of a committee of political advisers set up by U.S. Sen. Pete Wilson (R-Calif.) to help screen candidates for the federal bench.

Livingston, however, stressed that preparation of the white paper was a voluntary effort on the part of himself, Bakaly and other members of O’Melveny & Myers and was not done under the auspices of the law firm. The firm, he said, has taken no position on the Supreme Court election.

Citing 23 cases, the white paper, among other things, accuses the court of:

- Thwarting the will of voters in a 1983 legislative reapportionment opinion that was favorable to Democrats.

- Subverting the will of the public in several Proposition 13 opinions that enabled local governments to raise property taxes without gaining a two-thirds voter majority.

- Waiving the rights of property owners in a variety of situations, including a shopping center that unsuccessfully sought to ban a petition drive from the premises and a landlord seeking to convert an apartment building into condominiums.

- Expanding commercial liability unreasonably in several cases, including one in which the court allowed a landlord to be held liable for a defective shower door that was installed years before the landlord acquired the building.

Among the cases discussed are several that have been the subject of debate by politicians and legal scholars around the country.

Cited by President

For example, the opinion criticized by President Reagan also was singled out in the white paper. It was written in 1983 by Bird and said that a telephone company could be held liable for injuries suffered by a man who was inside a phone booth that was struck by a driver alleged to be drunk. According to testimony, the door of the phone booth, which was 15 feet from a busy street, jammed when the man inside tried to escape and avoid being hit.

In her majority opinion, Bird wrote that the phone company could be found liable if a jury decided that such an accident was “foreseeable” given the placement and maintenance of the phone booth. Bird pointed out that 20 months before the accident the same phone booth had been hit by another car.

“A jury could reasonably conclude that this risk was foreseeable,” Bird wrote.

Reagan was quoted as saying the opinion was an example of legal theory that is “twisted and abused,” forcing businesses to accept financial responsibility for acts over which they have no control.