Grodin Replies to Critics in Case-by-Case Defense

For the first time in the yearlong political battle over the California Supreme Court, a justice has responded to critics with a case-by-case defense of the court’s record.

Angered by a recent critique of civil opinions, Associate Justice Joseph R. Grodin, one of three justices marked for defeat by conservative opposition groups, did what none of his colleagues have been willing to do up to now: He talked about court decisions in an effort to rebut what critics have said about those cases.

Grodin was responding to a “white paper” written by five members of O’Melveny & Myers, a Los Angeles-based corporate law firm, that accused him, Chief Justice Rose Elizabeth Bird and Associate Justice Cruz Reynoso of discriminating against business interests. The lawyers prepared the paper in cooperation with Crime Victims for Court Reform, one of the principal groups campaigning against the three justices.

In an interview at his home here, Grodin drew on his personal store of lawbooks and law review articles, sometimes citing the language of his own opinions, to take issue with the white paper’s claims.

Grodin described the paper as “outrageous and shocking,” pointing out that neither he nor Reynoso was on the court when a number of the 23 cases discussed in the paper were decided. Fourteen of the opinions were issued before Grodin joined the court, and 11 came out before Reynoso was appointed. The two justices joined the court at different times during 1982.

“Doesn’t it strike you as odd that a paper designed to persuade people to vote against judges is based on so many cases that two of the judges had nothing to do with?” Grodin asked. “To me, it smacks of something less than the objectivity one would expect from lawyers.”

Grodin also said that the court record, in general, was distorted by the white paper’s failure to include a number of cases, particularly in the area of medical malpractice, where majority opinions have been applauded by business interests.

“They (the authors of the white paper) don’t tell you about a whole lot of decisions that any objective person might want to include in order to come to a reasonable conclusion about the court’s record,” he said.

Then, Grodin talked about many of the 23 cases included in the white paper. He said the paper’s distorted view of many of those cases compelled him to comment.

He was especially concerned to show that, contrary to what the white paper contended, the court has not ignored the dictates of the Legislature or the will of the people.

For example, he cited a politically charged case in which the court was criticized for rejecting a Republican challenge to a Democratic reapportionment plan. Grodin said the court was simply abiding by a constitutional prohibition against the adoption of two reapportionment plans within the same decade.

In another opinion, in which the court was accused of usurping the Legislature’s authority over the right to strike by public employees, Grodin referred to language in the opinion that affirmed the Legislature’s power over the matter.

“Why is it an invasion of the legislative province to say it is up to the Legislature to decide?” Grodin asked.

“That’s not to say that any of this isn’t debatable. But for competent lawyers to say it is grounds for the judges’ removal from office . . . I find that ludicrous,” he said.

Grodin was most disturbed by the white paper’s criticism of a majority opinion written by Bird in a case awarding unemployment insurance to a medical technician fired for refusing to carry out an assigned task.

Referring to his own concurring opinion, Grodin said the technician refused to complete the assigned task--cutting tissue samples from organs removed from live patients--because she feared that her lack of qualifications might endanger a patient.

“We’re not talking about refusing to do a job here, we’re talking about a professional’s considered judgment that she was going to risk the life of a patient,” Grodin said, adding that it amounted to “rank distortion” for the authors of the white paper to leave out that aspect of the case.

Daniel M. Livingston, one of the lawyers who wrote the white paper, said the paper “was obviously not designed to be a comprehensive review of the court’s work” but rather to offer a selection of cases that point out the direction the court has been heading.

“It shows a consistent pattern where the three justices have ignored statutory intent,” Livingston said.

On the other hand, he said, “I hope that scholars don’t regard it as the final word. It is only meant to be a sampling.”

Neil Rincover, Reynoso’s campaign manager, said Monday that the authors of the white paper should be “disciplined by the bar.”

“It is completely unethical for them, for members of the bar, to distort what the court has done,” Rincover said.

Mosk Influence Cited

Characterizing the white paper as a political hatchet job thinly disguised as scholarly enterprise, Rincover faulted the paper for the same reasons cited by Grodin and also said that the authors gave up any claim to objectivity by failing to point out that many of the 23 opinions reflected the participation, if not the guiding genius, of Justice Stanley Mosk.

Although Mosk is regarded as the senior member of the court’s liberal majority and is the author of many opinions unfavorable to business interests, his reputation as a distinguished jurist and a canny politician has persuaded most of the court’s organized conservative opposition not to campaign against him.

Steven Glazer, Bird’s campaign spokesman, said the paper, which he described as “a political document and not an academic study,” offered scant justification for voting against the justices.

“Even an eighth-grade social studies student knows if you dislike a court decision, you change the law on which it is based. You don’t change the judges,” Glazer said. “All of these court decisions could have been reversed by the Legislature or the people. However, when these corporate special interests lose in the courts, they want to try to purge the judges.”