California Elections : ‘Bird Court’ Label Is Not Supported, Legal Experts Say

In her nine years on the bench, Chief Justice Rose Elizabeth Bird has become the symbol of a state Supreme Court embroiled in a heated election campaign because of the controversial and far-reaching decisions it has issued during her tenure.

But while it is often labeled the “Bird Court,” there is little indication that the chief justice has played a dominant role over other court members in shaping its judicial record.

Bird’s hallmark, in the view of legal experts, has been her independence and willingness to take positions apart from the rest of the court--rather than asserting herself as the court’s philosophical leader and reflecting its ideological center.

To be sure, Bird has often voted with the majority and written many of the court’s major decisions. But she also has exhibited a strong tendency to go it alone--writing often-lengthy individual concurrences and dissents that put her at odds with other members of the court, including liberals.

She has become not only the most liberal member of the court--in urging new rights and protections for criminal defendants and civil plaintiffs--but also its most prolific author of separate opinions.

A recently completed study of court voting patterns, for example, shows that in 277 decisions issued in 1984 and 1985, Bird issued 55 individual concurrences and dissents--more than any other justice.

“She is not so extreme as to be off the chart . . . but she is not in the middle of the court,” said Barry Winograd, a state administrative law judge and adjunct lecturer at UC Berkeley Law School who made the study and who supports confirmation of all the justices on the ballot.

“You cannot really call this a ‘Bird Court,’ ” he said.

Her independent course seems to set her apart from some predecessors credited with playing dominant roles on the court. But experts are quick to point out that there is no requirement--formal or informal--that chief justices actually “lead” the court. The leadership role invariably is assumed by the court member able to do so, whether chief justice or not, they say.

The late Roger J. Traynor, who was chief justice from 1964 to 1970, won national acclaim as a legal scholar and was acknowledged leader of the court because of his strong intellect and persuasive manner.

“He was quite unusual and had a leadership style that very few could duplicate,” said Hastings College of the Law professor James McCall, who is writing a book on the Traynor court. “Basically, he led by being a craftsman of the law . . . and his well-deserved stature as one of the finest judges in the country.”

Bird’s critics see her independent ways as evidence that she is not fit to serve as chief justice.

“She has an astonishing disregard for the role of leadership and coalition-building,” said UC Berkeley law professor Phillip E. Johnson, an outspoken opponent of her confirmation. “Wherever possible, without abandoning principle, a chief justice in particular ought to strive for unity within the court. But Bird seems to conceive of herself as a prophet, making moral pronouncements instead of achieving unity.”

Her supporters, however, minimize the importance of a chief justice serving as a centrist, philosophical leader--and praise her separate opinions as proof of strong adherence to principle.

Moreover, they say, such opinions can serve to clarify the scope and implications of a court ruling, providing useful guidance to judges, lawyers and others in future cases.

“She’s been an independent thinker on the court,” said UCLA law professor Steven H. Shiffrin, this year a visiting professor at Harvard Law School. “The California Supreme Court itself has historically been independent--and she’s solidly in that tradition.”

Independent Views

Shiffrin and other Bird backers liken her independence to that of William H. Rehnquist or the late William O. Douglas--two U.S. Supreme Court justices (one conservative, the other liberal) who often expressed views other court members were unwilling to join.

“It helps to know as much as you can about what the justices are thinking,” Shiffrin said. “ . . . Bird takes those responsibilities seriously, just as have Rehnquist and Douglas.”

During Bird’s tenure, the California Supreme Court has remained one of the most liberal and activist state courts in the country.

It has expanded procedural protections for criminal defendants, widened the liability of landowners and corporations, established new legal safeguards for consumers and tenants, broadened civil rights guarantees and settled election disputes with wide political effects.

Range of Opinions

Bird herself has written for the court majority in a broad range of cases, issuing the court opinion, for example, when the justices:

- Ruled that a state election in 1982 should be held under new a Democratic-sponsored reapportionment plan--rather than the old plan--even though the new plan was then being challenged under a Republican-backed referendum. As a result, state legislators were elected that year from districts that the voters simultaneously rejected in approving the referendum--and those legislators in turn later adopted a third reapportionment plan.

- Issued several rulings strengthening the legal rights of tenants, including one that said a landlord cannot evict tenants in retaliation for exercising their civil rights.

- Held that bail should not be used as punishment and that defendants are entitled to release without bail unless the prosecution can show that they are likely to flee if released.

- Barred special “ladies night” discounts for women at nightclubs and other establishments, saying that sex-based price-reductions violated state civil rights laws.

- Expanded the liability of foreign companies by ruling that injured persons could bring suit in California courts against such firms that manufacture defective products, even if they make no direct sales in this state.

- Ruled that a criminal defendant could be charged with lewd conduct with a child under 14, even if he reasonably believed the victim was older.

Bird has voted with the majority in many milestone rulings: when the court ruled that state agencies have a “public trust” duty to consider environmental and recreational values in allocating water resources; said victims of a faulty drug can sue drug manufacturers even when they cannot identify the maker of the product that harmed them, and barred rental housing discrimination against families with children.

But in other cases--including some major decisions that have had far-reaching impact--Bird has been among the dissenters.

Dissent on Prop. 13

She dissented when the court upheld Proposition 13, the property tax initiative adopted in 1978 and dissented again when the justices affirmed the overall constitutionality of Proposition 8, the victims’ bill of rights initiative adopted in 1982.

Bird was also among the dissenters when the court upheld landmark legislation limiting the fees that plaintiffs’ attorneys can receive in medical malpractice cases and placing a $250,000 maximum on damage awards for pain and suffering in such cases.

In separate opinions, Bird has often indicated dissatisfaction with the narrow scope of the majority opinion and urged her colleagues to issue more sweeping rulings. For example:

- When the court overturned the longstanding legal doctrine prohibiting strikes by public employees, Bird issued a 32-page concurring opinion saying the majority should have gone further and established a broad constitutional right to strike. In support of her contention, the chief justice cited provisions of the 13th Amendment barring “involuntary servitude” and compared bans on such strikes to the Polish government’s suppression of strikes by Solidarity, the Polish labor union.

- When the court held that plaintiffs in invasion-of-privacy suits must show financial harm to win damages against news organizations, Bird issued a concurring opinion saying it was time to consider giving the press absolute protection to criticize any public official conduct without fear of being sued for libel.

- When the court ruled that the Santa Cruz Boys’ Club must admit girls, Bird issued a concurrence quoting from an earlier opinion in the case written by an appeals court justice who warned that allowing such nonprofit fraternal or charitable groups to discriminate would theoretically allow “the Ku Klux Klan or neo-Nazis” to offer facilities to white children only.

- When the court said school authorities could search students when they have “reasonable suspicion” that a crime has been committed, Bird issued a separate opinion saying officials should be required to meet a higher standard of “probable cause” to believe a student committed an offense.

- When the court sidestepped the question of whether resident aliens could be excluded from jury service and decided the case on other grounds, Bird dissented, saying their exclusion violated requirements for selection of juries from a cross section of the community.

In criminal cases, Bird has become a lightning rod for attack by critics who believe that the court has gone too far in protecting the rights of defendants--with her votes and opinions in capital cases being singled out for the harshest criticism.

Bird’s opponents repeatedly cite the fact that she alone has voted against the death penalty in all 59 capital cases the court has decided since the death penalty was reinstated in California in 1977.

Critics take further note of several instances in particularly notorious cases where Bird differed sharply with the majority and said the court should have gone further to protect defendants’ rights.

Death Sentence Dissent

When the court upheld the death sentence imposed on Stevie Lamar Fields for the robbery, beating and fatal shooting of a USC student librarian, Bird dissented, saying the defendant had been denied a fair trial because persons who would not vote for the death penalty had been unfairly excluded from the jury that eventually found him guilty.

Bird cited similar grounds in a dissent when the court upheld the conviction but overturned the death sentence issued Theodore F. Frank for the torture and mutilation murder of a 2-year-old girl. The chief justice said both the conviction and sentence should have been reversed.

Much of the controversy over the court’s death penalty rulings has focused on two decisions concerning the “intent” of defendants accused of murder during the commission of a felony.

Breaks From Majority

Bird was in the majority on the first ruling, but dissented in the second, saying that the majority had not gone far enough to protect the defendant’s right to trial by jury.

The justices first ruled in 1983 that death could not be imposed on such defendants unless the jury, as instructed by a judge, specifically found that the defendants intended to kill their victims.

A year later the court applied the ruling to all pending appeals, raising the prospect--one that still exists--of scores of retrials in capital cases.

However, the justices did say that retrials were not required in a narrow category of cases where an appellate court could determine that a defendant intended to kill.

No Exceptions

Bird agreed that the 1983 ruling should be applied retroactively, but, in a dissent joined by Justice Stanley Mosk, she said there should be no exception at all because that would invade the traditional fact-finding role of the jury.

In subsequent cases, the court has been reluctant to apply the narrow exception. Last December, for example, the court cited the lack of a proof of intent in overturning the death sentence issued on a defendant accused in the killing of a Brinks guard who was shot five times at point-blank range while carrying $85,000 in a bank bag.

Bird, writing for the majority, said it was possible that the jury might have found that the shots were fired “with the intent to wound the guard--so that he would release the money bag--or to immobilize him so that the robbers could make their escape.” It was possible, she added, that the defendant could have fired in a “reflexive reaction,” particularly if the guard had shot first.

Sharp Criticism

Bird’s opinions stir sharp criticism from academics who oppose her. Essentially, they accuse her of abandoning judicial neutrality and performing an advocate’s role--adopting a result first and then working out the best legal argument possible to support it.

“Her opinions do not have the logical clarity and precision one would expect,” said political science professor Edward J. Erler of California State University, San Bernardino. “She seems less concerned with articulating constitutional or legal ideas but more with making mere assertions.”

But scholars who support her give Bird’s opinions high marks.

“It’s true her concurring opinions go beyond the majority view and often push positions as far as those positions will go,” said Stanford University law professor Michael S. Wald. “But that’s not necessarily a bad thing. . . . I’ve found her opinions are extremely well researched and reflect a forceful presentation of the judicial philosophy she has. They’re well defended and supported by precedent and law.”

No ‘Bird Bloc’ Found

Recent studies support the view of Bird as an independent member of the court, rather than the dominant leader of a liberal faction.

The analysis of court decisions in 1984 and 1985 by Administrative Law Judge Winograd casts doubt that the chief justice and two other liberal jurists targeted for defeat in November vote have formed a sort of “Bird bloc” on the court.

Winograd found that although they often voted together, there was not one opinion in which Bird and Justices Cruz Reynoso and Joseph R. Grodin joined against other members of the court.

Both Reynoso and Grodin agreed more often with now-retired Justice Otto M. Kaus and Justice Allen E. Broussard than they did with Bird.

Leader in Opinions

The study showed also that Bird’s 55 individual concurrences and dissents exceeded the 49 such opinions issued by Justice Malcolm M. Lucas, regarded as the most conservative member on a generally liberal court. Reynoso issued six such opinions and Grodin 20 during the same period.

An analysis of the court’s decisions in 1982 by UC Berkeley law professor Stephen R. Barnett, who is opposing Bird’s confirmation, pointed out that the chief justice was alone in seven of the 15 dissents that she issued.

Barnett wrote that while they did not win over a majority of the court, some of Bird’s dissents “had notable value, advancing in resolute fashion unbending but tenable positions.”