Stature of Honored Court Tested Amid Bird Debate

Before it became identified with Rose Elizabeth Bird and the death penalty debate--the California Supreme Court had a different reputation.

For many years, the California Supreme Court was known as one of the best state courts in the country, with more than one of its justices compared favorably to leading lights of the U.S. Supreme Court.

It was the court of Bakke and “palimony,” a pioneering court--typically, the first in the land to decide whether the latest fad passed legal muster. Moreover, its creative opinions in constitutional law and product liability were widely followed by other states.

During the past year, however, the intensity of the campaign against Chief Justice Bird and two colleagues has raised a provocative question about the court’s stature. Would the campaign have gathered such a head of steam, with a number of lawyers and law professors joining in the attack, if the court was as good as it used to be?

Recently, a fund-raising letter sent out by a group of lawyers opposing the reelection of Bird and Justices Joseph Grodin and Cruz Reynoso said the court’s national reputation had declined under Bird’s stewardship.

Bird’s supporters dismissed the letter as a ploy by Republican corporate lawyers who want to give a GOP governor the first opportunity in 50 years to appoint a majority.

While the lawyers have strong Republican ties, their argument that the court has lost its prestige has been the subject of debate for some time.

Since 1980, the public has registered its dissatisfaction with the court through three initiative campaigns aimed at repudiating important rulings in criminal law, legislative reapportionment and civil liability. Moreover, the court’s record in those areas has come under critical scrutiny by legal scholars.

The critics argue that the caliber of the justices today is not what it once was, that their opinions are not as widely followed by other state courts as they used to be and that their views are increasingly out of touch with social values.

“It’s not that the court isn’t respected anymore. It’s just not the giant it once was,” said Ronald K. L. Collins, a former teaching fellow at Stanford University and one of a handful of legal scholars in the country to make a study of state courts.

“The California court is still a major influence among state courts. When it hands down an opinion on an important issue, it will be studied elsewhere. But the court does not enjoy the preeminence it once did,” said Gary Schwartz, a UCLA law professor who specializes in personal injury and product liability law, areas in which the court made much of its early impact.

Death Penalty

Injected in this year’s campaign, the issue of the court’s prestige is something of a wild card. By itself, it might not be enough to persuade a majority to vote against Bird and other members of the court’s liberal majority. But combined with the attacks on Bird and her record on the death penalty, the court’s reputation is an important ingredient.

It has been more than 50 years since voters in California rejected an incumbent Supreme Court justice. The voters have heeded the argument that the court should be shielded from political pressure.

This year, many undecided voters may be reluctant to depart from that tradition based on a single issue such as the death penalty. But they might be willing to do so if they are persuaded that the court is in decline and that its leadership is no longer worth preserving.

The California court has been known as a liberal court for a long time. In its prime, from the 1950s to the mid 1970s, its opinions often echoed and sometimes anticipated important rulings on criminal law and constitutional rights by the U.S. Supreme Court under the late Chief Justice Earl Warren.

Criminal Defendants

Today, most of the court’s opinions on behalf of criminal defendants, consumers, workers and tenants faithfully follow the principles that first earned the court nationwide respect 30 years ago.

The critics acknowledge that the current justices belong to the same ideological tradition as their distinguished forbearers, men like the late Chief Justice Roger Traynor, who served on the court from 1940 to 1970 and has been described as the ablest judge of his time in the country.

But the critics insist that the current court has taken the ideas developed in the Traynor era and applied them to a new and different time with a dogmatism that bears little resemblance to the creativity that characterized the golden years of the California Supreme Court.

For example, the current court’s opinions making it easier for injured people to collect damages are rooted in theories of expanded liability that were first in vogue in the early 1960s.

Today, critics like George Priest of Yale University Law School, argue that the court’s adherence to 20-year-old precedents ignores new realities.

Continues to Expand

Priest contends that as the modern court continues to expand the liability of business and government, it hurts most the people that the court wants most to help--the ones least able to afford rising insurance costs.

In a sense, the critics are accusing the liberal justices of being conservatives, unable or unwilling to adjust their thinking to a time when society is looking for new answers to the problems of the age, whether they have to do with insurance coverage, crime or an anemic economy.

“Traynor was playing into the intellectual fashion of his time. His opinions expressed ideas that were then coming of age, notions of expanding individual rights in criminal cases and expanding rights for injured parties in civil cases,” said Phillip Johnson, a UC Berkeley law professor who once clerked for Traynor.

While the present court majority remains faithful to the legal theories developed during the Traynor era, Johnson said, “the rest of the country is having second thoughts.”

‘Heinous Crime’

“When people see how hard it is get a conviction for a heinous crime, they naturally begin to wonder about the wisdom of the liberal, legalist idea of justice, where everybody gets a hearing on everything all the time,” he said.

“Good ideas are not always good ideas,” Johnson said.

But the notion that the court has lost its intellectual vibrancy is by no means universal.

Bernard Witkin, the 81-year-old dean of California legal scholars, said much of the criticism is politically inspired.

“There is an undercurrent of criticism of the court. You run into it in many places. But it springs from people who are opposed to an activist court, and by activist, I mean a liberal expansion of constitutional rights,” Witkin said.

While Witkin admits to disagreements with some of the court’s opinions on behalf of criminal suspects, he argues that the court has lost none of its talent for scholarly innovation.

Novel Approach

As an example, Witkin pointed to the court’s novel approach to a question that Traynor never faced: What to do in cases involving a drug with crippling side effects that do not show up for generations.

In 1980, the state Supreme Court faced that issue when Judith Sindell sought damages for a cancer she blamed on a drug her mother had taken to prevent a miscarriage. Sindell could not identify which of the 200 companies making the drug had sold it to her mother. So, she sued the 11 companies responsible for 90% of the market share of the drug at the time her mother bought it.

In the court’s 1980 opinion, Justice Stanley Mosk declared that companies who share a substantial portion of the market can all be held liable for a defective product when it cannot be proven which firm actually sold the product to the injured party.

Nationwide Debate

Mosk’s opinion in the Sindell case has stirred nationwide debate, even capturing the attention of critical scholars, such as UCLA’s Schwartz, who regard a lot of the court’s work these days as rather unexceptional.

“Sindell is a fantastically interesting case,” Schwartz said. “Scholars have written about it extensively. Some think it is a wonderful idea. Some think it is awful. History will have to decide who is right.”

Right or wrong on Sindell, the court’s opinion set the terms of the debate in one new and expanding area of the law: cases involving the delayed affects of exposure to hazardous products.

When the reputation of the state Supreme Court was at its peak during the two decades before Bird’s appointment in 1977, its opinions often went to the heart of the most controversial social issues of the day.

Legal Claims

It was the California court, ruling in a 1976 lawsuit brought against actor Lee Marvin, that legitimized the term “palimony,” granting live-in couples the same legal claims on each other’s property as married couples have.

In the same year, the court put limits on affirmative-action plans, ruling in Bakke versus Regents of the University of California that a college cannot accept minority students over other applicants with higher academic qualifications.

But the case that put the California Supreme Court on the map had little to do with news-making issues of the day. Instead, the case involved a rather parochial lawsuit by a weekend carpenter named William Greenman who was seriously hurt by defective power lathe. A lower court had decided that the manufacturer of the tool was not liable because the company had lived up to warranty conditions.

Liability Law

On appeal, however, the Supreme Court ruled against the manufacturer in a 1962 opinion by Traynor that sparked a nationwide revolution in product liability law.

Up to then, such liability had been dependent on the wording of contracts and warranties. Traynor rejected that notion, arguing that liability grew out of the unwritten responsibility of manufacturers to bear the costs of injuries resulting from defective products.

One of Traynor’s colleagues on the court, the late Justice Matthew Tobriner, wrote a justification of Traynor’s bold stroke in a law review article that is often quoted as evidence of the Populist philosophy underlying much of the court’s work.

Tobriner wrote that the industrial economy had deprived consumers of their bargaining power over the cost and design of products. Moreover, he said, the consumer’s powerlessness was a sign of a larger “economic imbalance” that gave big business an unprecedented control over people’s lives.

Legal Redress

According to Tobriner, the potential for abusing that power required new and “revolutionary” forms of legal redress by the courts. And he said the courts should be especially vigilant in looking after the rights of the most helpless members of society, poor people and minorities.

The court has provided such redress through two lines of opinions. One made it much easier for injured people to collect damages from business and government; the other made it harder for business, government and especially law enforcement to intrude on a variety of individual rights.

The court’s rulings opened a new world of opportunities for people who had suffered physically or emotionally at the hands of manufacturers, retailers, landlords, motorists and local governments.

For the first time, the court said injured motorists could collect damages even if they were partly at fault and ruled that people who were hurt while visiting someone else’s home could collect damages from negligent hosts.

Opened Way

Additionally, the court opened the way for parents who witnessed the accidental death of their children to recover damages for emotional trauma. The court also said that manufacturers could be held liable for faulty products even when consumers went ahead and used the products knowing that they were defective.

Issued during the 1960s and early 1970s, the opinions in those cases and a number of others influenced court decisions around the country.

However, by the end of the 1970s, a backlash was in the making. Skeptics started accusing the court of going too far--of forsaking fairness in the interest of redistributing wealth to injured plaintiffs. Instead of encouraging responsible behavior, it is argued, the court’s rulings have been so Draconian that they discouraged business and government from providing the goods and services people expect.

The critics singled out several cases.

In one, the court held in 1978 that a school could be held liable for injuries suffered by a student who was struck by a motorcycle after he had left school property without permission.

‘Deep Pockets’

In a particularly controversial case, the court validated what became known as the theory of “deep pockets” by which an accident victim could recover damages from the wealthiest or most heavily insured of several defendants, even if that defendant was least at fault.

Former Justice Otto Kaus, who retired from the court last year and was known as a moderate during his tenure, said recently that the trend in personal injury opinions raised a troubling question about the court’s mercy toward victims of accidents and social injustice.

Had the court “taken a perfectly rational premise to a ludicrous extreme?” mused Kaus.

Were corporations, insurance companies and local governments being held justly accountable for their sins or were they just being squeezed because it was assumed they could afford to pay? In California earlier this year, the voters replied to that question by approving a ballot measure designed to restrict access to so-called “deep-pockets” defendants.

Pain and Suffering

Known as Proposition 51, the measure limits a defendant’s financial liability for pain and suffering damages to the degree that he is at fault.

The debate over the California Supreme Court’s reputation also takes in the court’s record on constitutional cases and pits individual rights of privacy and free expression against the interests of police and property owners. The debate also focuses on the court’s frequent departures from precedents set by the U.S. Supreme Court in the past 15 years.

There are eminent legal minds on both sides. Former U.S. Supreme Court Justice Arthur Goldberg and constitutional law scholar Laurence Tribe of Harvard University are among the leading defenders of the current court.

Berkeley’s Johnson is the most prolific critic of the court’s constitutional opinions, especially in the area of criminal law. But Johnson has plenty of company, including Witkin, who speaks highly of the court except when it comes to its opinions on the rights of suspected criminals.

Constitutional Law

The court’s most criticized decisions in the area of constitutional law flow from reasoning that dates back to a celebrated opinion by Traynor, which upheld a suspect’s right to privacy. In the 30 years since that case, the court has continued to cherish that right in a variety of new and different circumstances, often barring police from gaining access to incriminating evidence. Where that has happened, controversy has arisen.

Once again, the court’s application of a famous Traynor precedent begs the question raised by Kaus: Has the court taken a once-good idea and run it into the ground?

In a 1955 case involving an alleged bookmaker named Charles M. Cahan, Traynor wrote a majority opinion throwing out Cahan’s conviction because it was based on evidence acquired without a search warrant.

Police Procedure

Six years later, the U.S. Supreme Court, in one of its most important decisions on police procedure, followed Traynor’s reasoning in outlawing evidence obtained through illegal searches.

Throughout the 1960s, the California court under Traynor and the U.S. Supreme Court under Warren frequently complemented one another. But as the U.S. Supreme Court grew more conservative under Chief Justice Warren Burger, the California court took a different direction.

The California justices headed out on their own by invoking a novel form of legal states rights known as the doctrine of independent state grounds. It allows the court to substitute its interpretation of the California Constitution for the U.S. Supreme Court’s interpretation of the U.S. Constitution--even where the language of the two documents is the same.

State Funding

The California court has used independent state grounds to allow state funding for abortions for indigent women, to strike down unequal public funding for inner-city schools and to uphold the public’s right to circulate political petitions at privately owned shopping centers. All three rulings ran contrary to U.S. Supreme Court decisions.

But California’s use of independent state grounds has been most controversial in criminal law and especially in the area of search and seizure, where the state court, in contrast to the U.S. Supreme Court, has banned warrantless searches of the personal belongings, telephone records, garbage cans, automobile trunks and suitcases of suspected criminals.

One of the court’s most controversial death penalty reversals, involving convicted child torturer Theodore Frank, shows how far the court has come since Traynor’s ground-breaking ruling in the Cahan case.

Kicked in Door

In Cahan, the court threw out bookmaking evidence because it was seized without a search warrant by police who entered the suspect’s house by breaking a window and kicking in a door.

Thirty years later in the Frank case, police had a search warrant when they entered the suspect’s house and seized a diary in which Frank wrote about how much he enjoyed torturing children.

Moreover, the warrant was fairly specific in saying what the police could look for, naming such items as “. . . scrapbooks . . . or writings which could relate to the death of Amy (the victim) and would indicate either participation in or an interest in that death by Theodore Frank. . . .”

Still, the court ruled that the search was illegal because the warrant was “overly broad.” The court said police had no reason to suspect the existence of a diary and only found it as a result of a catchall warrant that allowed them to ransack Frank’s personal papers in the hope of finding something incriminating.

Common Feature

Defenders of the court, like former U.S. Supreme Court Justice Goldberg, applaud recent decisions because, he said, they adhere strictly to a “built-in prejudice in favor of the individual,” which Goldberg argued is a common feature of both the U.S. and California constitutions. The California Court, Goldberg said, has had the courage to recognize that individuals do not forfeit their special standing under both constitutions, even when they commit heinous crimes.

Critics like Witkin, on the other hand, believe that neither Constitution was ever meant to be an obstacle to proper law enforcement but that the court’s rulings have had that effect.

“Rulings designed to protect the individual from improper police behavior have served mainly for the protection of guilty criminals,” said Witkin, whose view may be more in line with prevailing public opinion.

Liberal Standard

With Proposition 8, a 1980 initiative, Californians said the court could no longer apply a more liberal standard than the U.S. Supreme Court in search-and-seizure cases. According to the initiative, any evidence permissible under U.S. Supreme Court guidelines must be permitted by the California Supreme Court.

Critics of the court point out that Propositions 8 and 51 are two of several examples during the past decade when California voters passed laws aimed at negating court decisions.

The critics argue that it is a further sign of the court’s eroding stature.

“Every institution in society that wants to maintain its independence must maintain its credibility with the public, just like the press or the university,” said Berkeley’s Johnson.

Historical Fact

But such criticism ignores the historical fact that many of the nation’s great judges, beginning with John Marshall, the second chief justice of the U.S. Supreme Court, have angered all kinds of people, from presidents to state legislators.

There is another, more glaring inconsistency in the election-year attacks on the court’s reputation.

The critics who blame the current crop of judicial liberals for devaluating the Supreme Court have scrupulously avoided tangling with the dean of the court liberals, Mosk, who is up for reelection along with the three justices who are drawing all the fire.

Mosk is regarded as the guiding genius behind the use of independent state grounds, and he has written more opinions limiting search-and-seizure tactics than any other justice in the court’s history.

Dates Back

But to take on Mosk would mean challenging someone whose tenure dates back to the Traynor era and who is still thought of as one of the nation’s eminent state court justices.

“Mosk’s continued presence is maybe the strongest rebuttal you can make to the argument that the California court is in decline,” Collins said.

Collins and most other academic critics, including Schwartz and Johnson, who contend that the court’s reputation has lost some of its luster, tend to be rather cautious in their criticism. Most are not calling for the defeat of the justices in November and are quick to point out that the court still enjoys widespread respect.

Because it is not cut and dried, the issue of the court’s reputation probably would not be enough on which to build a campaign against the justices, the critics say.

Collins summed it up in a question and promptly offered the answer:

“If Bird weren’t there, if you didn’t have the issues of her personality or her record on the death penalty, would the court be in trouble based on its overall record? Sure, there would be political heat but not enough to knock off a justice.”