Malcolm Lucas: The Great Hope Among Court Conservatives

For most of the past 2 1/2 years, California Supreme Court Justice Malcolm M. Lucas has found himself alone, the one conservative on a court dominated by liberals.

He has dissented when liberal justices allowed public employee strikes and when they consistently reversed death penalties. When the justices let stand a 1984 lower court ruling allowing state-funded abortions for poor women, he cast the one vote to hear the case, suggesting that he questions Medi-Cal abortions. Lucas has, in fact, dissented in about one of every three cases since joining the court in April, 1984.

Nonetheless, he may well be the future.

Tall and silver-haired, reserved and proper, he is respected by his liberal colleagues. For conservative judges and Republican activists, the feeling goes beyond respect. He is their hope, the one many believe will be the next chief justice--if Gov. George Deukmejian wins reelection and embattled Chief Justice Rose Elizabeth Bird is defeated next month.

Model of Justice

“He is the very model of a Supreme Court justice,” said Sheldon Sloan, a Los Angeles lawyer, former judge and Republican activist. “He has it all. He is smart. He can deal with people. He’s got experience. He’s clean.”

Lucas, Bird and four other Supreme Court justices will be on the Nov. 4 ballot. But while Bird, targeted by several groups for defeat, is trailing in the polls, Lucas, 59, is expected to win a new term easily. Although he faces no organized opposition to his reconfirmation, he will not grant press interviews for fear of seeming to be mounting a campaign.

“It is my private guess that if (Bird) is removed, Malcolm Lucas would get the appointment,” said a leading Republican activist in the effort to unseat Bird. “I think George (Deukmejian) likes him very much.”

There are, of course, other possible replacements for Bird if she loses, among them Justice Edward A. Panelli, Deukmejian’s second high court appointee. But Lucas and Deukmejian have been friends for three decades and were law partners in Long Beach for 13 years.

“All things being equal, friendship is going to enter into it. Things may be equal, but Lucas and the governor are friends,” the Republican said.

Steven Merksamer, Deukmejian’s chief of staff, would not comment about the next chief justice, calling it “hypothetical and presumptuous.” Merksamer did say the governor “has a very high regard for (Lucas), very high.”

Distaste for ‘Campaigning’

For his part, Lucas spurns talk about the politics of the bench, and has cut back on what had been rare speaking appearances. He says his inaccessibility “is a temporary phenomenon based primarily on my distaste for campaigning for judicial office.”

The father of two, a graduate of USC Law School and the great-grandson of an Ohio governor, Lucas’ roots in the California Republican Party run deep, at least with that part of the party having to do with judicial appointments. He was chairman of a committee that advised then-Gov. Ronald Reagan about selections of trial court judges. Now he is on Sen. Pete Wilson’s (R-Calif.) committee that recommends appointees to the federal bench.

His experience as a judge began when Reagan appointed him to the Los Angeles County Superior Court, where he ran the criminal division. In 1971, President Nixon appointed him to the U.S. District Court in Los Angeles. There, prosecutors viewed him as the best trial judge. Defense lawyers also respected his ability but occasionally called him “Maximum Malcolm” because of the long prison sentences he imposed.

In 1984, Deukmejian induced him to leave a life-tenured spot as a federal judge in Los Angeles for the state Supreme Court, filling a vacancy left by the retirement of Frank K. Richardson, who had been the only conservative.

“Mal was a known quantity to George. His record was there,” said Campbell Lucas, Malcolm’s brother, himself a partner in the old Lucas-Deukmejian law firm and a Deukmejian-appointed Court of Appeal justice in Los Angeles.

Got Values From Mother

The brothers--Campbell is older by two years; Eric, the third brother, ran the Port of Long Beach for several years--often refer to the values instilled in them by their mother, a prematurely widowed Scottish immigrant. As Campbell told it, their mother taught them “the basic nature of right and wrong, if you want to get fundamental about it.”

“These are things that are not subject to the whims of fashion: the work ethic, the idea that if you do something wrong you should be punished. In the ‘60s and part of the ‘70s, that concept was just ignored,” he said.

Explaining why his brother left the federal bench for the Supreme Court, where he would be forced to face voters and where the sitting chief justice already was under siege, Campbell Lucas said:

“There is only one chief justice of California and there are lots and lots of district judges.”

Campbell Lucas went on to make several references to the lofty role of the “chief” justice in this, the most populous state. Later in the interview, questioned about his references to the chief justice, Campbell said he was “clearly misspoken.” He declined to venture a guess about whom Deukmejian might pick if Bird is defeated, but said his brother would do a “great job” in the position.

‘Virtual Outcast’

Lucas took the Supreme Court job knowing that he would be the minority--a “virtual outcast,” attorney Sloan said. Sloan, who like Lucas is a member of Sen. Wilson’s judicial selection committee, said that before joining the state court, Lucas was a “lead-pipe cinch” to be named to the U.S. 9th Circuit Court of Appeal.

“He took the Supreme Court seat out of a sense of duty,” Sloan said. “He knew there was a chance the governor might not get another appointment. But in the back of his mind he knew there was a good chance there might be others.”

Lucas, writing in response to questions posed in a letter from The Times, called his role as a dissenter “unquestionably frustrating” but held out hope that his view will become the majority view.

“A well-reasoned dissent may induce the Legislature, or the people acting through the initiative, to enact new laws which advance or adopt the views expressed in the dissent,” Lucas wrote.

He noted that a dissent often composes “the foundation stone for a future majority opinion once the issue is raised before a different panel of justices. Thus, even a dissenter may ultimately reap the fruit of his or her labor.”

With Panelli’s appointment last December, Lucas appears to have gained more support on the court. Justice Stanley Mosk, author of some of the most far-reaching liberal rulings, often votes with Lucas, especially on capital cases. Mosk sided with Lucas, in dissent, to uphold 12 of 13 recent death cases issued by the court.

But for now, however, Lucas remains in the minority. Since joining the court, Lucas has dissented 65 times while participating in about 185 cases. In their longer tenures, Bird and Mosk have dissented in about one case in seven.

Lucas has authored only 16 signed majority rulings, though most new members take two years to begin issuing their share of majority opinions. Justice Cruz Reynoso has written the next fewest with 29 during Lucas’ tenure.

Recurrent Themes

Although he has written few majority opinions, a review of Lucas’ dissents show recurrent themes:

- Lucas, who spent 17 years as a trial judge, has chastised the court for reversing “judgment calls” by trial judges, especially when the trial judges sided with the prosecution. “One does not have to agree with the (trial) court’s choice to find the court did not abuse its discretion. Discretion implies choice,” Lucas said in a dissent, one joined by two other justices.

- He homes in on the facts of a case, more so than other justices, to justify trial judges’ decisions. He decried the majority’s reversal last year of a judge’s decision to sentence a 17-year-old youth to state prison for murder, rather than to the California Youth Authority. “This was not a death caused by a single blow or a short-lived outburst: (The) defendant repeatedly and violently strangled a struggling 16-year-old in the bedroom of his home,” Lucas wrote.

- He brings a sense of realism to the cloistered Supreme Court. The court last year ruled that the state constitutional right to privacy prohibits drug agents from flying over backyards in search of marijuana growers without a search warrant, even if agents have a tip that marijuana is being grown. “Contrary to the majority’s repeated references to ‘garrison states’ and ‘Orwellian notions,’ ” he scoffed, “we are not concerned with the privacy interest of nude sunbathers, religious cultists, political activists or anyone except marijuana growers.”

- His tenure as a federal judge shows through, for he dislikes the court’s tendency to rest its most liberal rulings on the California Constitution, rather than on the U.S. Constitution, even though key parts of the documents are similar. By citing the state Constitution, the state court has placed many more restrictions on police than are required by U.S. Supreme Court rulings.

Lucas’ own views sometimes seem to come into play. He dissented in 1984 when the court struck from the ballot an initiative that sought to require the Legislature to back a balanced budget amendment to the U.S. Constitution. Charging that the majority “once again deprived the sovereign people of their precious initiative right,” Lucas wrote glowingly of the proposed amendment, saying the decision “unfortunately terminates abruptly any widespread public debate by California citizens regarding a matter so crucial to their own, and their nation’s, financial well-being.”

Quoted Conservative Economist

In another case, he criticized the majority for upholding Berkeley’s rent-control ordinance against attack by landlords who claimed that it violated antitrust law. Lucas wrote at length about the anti-competitive effect of rent control, quoting with favor conservative economist Milton Friedman.

Lucas finds himself at odds with Bird more than any other justice. Even when he agrees with her, he sometimes does so from a distance. The two had similar grounds for dissenting to a decision last October allowing mentally incompetent people to be sterilized in limited circumstances. But while both cited past abuses in which thousands of mentally retarded people underwent such operations, they wrote separate dissents.

Try as he might, Lucas has not insulated himself completely from the storm over Bird’s reconfirmation. And the issue that drew him into the fray was the one that most separates him from Bird: the death penalty.

In his early months on the court, Lucas voted with the rest of the court to reverse half a dozen death penalty cases. In each case, he wrote, he was casting his vote reluctantly and was merely following the common judicial practice of adhering to precedent.

But Bird’s supporters quickly seized upon his votes to support a claim that she too was merely following the law when she voted to overturn every death penalty case to reach her. Lucas did not hold his silence.

In one of at least two letters to newspapers clarifying his position, he wrote: “Joining a majority opinion under compulsion of an earlier case is somewhat like joining the Army under duress of being drafted. In both situations, the exercise of free will is seriously in doubt.”

As Bird’s backers continued to cite his votes to reverse death sentences, Lucas last November issued an opinion saying he was breaking with his past practice. No longer would he consider himself bound by two rulings--issued before he joined the court and which he viewed as particularly repugnant--that juries must specifically find that a murder was intentional before sentencing a defendant to death. In the future, he said, he would not regard these two rulings as grounds for overturning a death sentence.

Voted in 22 Death Cases

Since then, he has voted in dissent to uphold every death sentence to come before the court. In all, he has voted in 22 death cases--casting votes to affirm 13 death sentences, reluctantly voting to reverse six and voting outright to throw out three death judgments.

Although Lucas is a conservative, he does not appear to be dogmatic. He voted with a unanimous court when it allowed unemployment benefits for a woman who quit her job to follow the father of her child, even though the couple were not married.

In one of his most important majority opinions, he required sweeping changes to the State Bar’s system of compensating people who are cheated by their lawyers. The Bar now must, for instance, allow people to hire lawyers to represent them when they seek compensation.

Although he dissents frequently and has had sharp exchanges privately with some justices, his relations with his brethren seem solid. He joins the others in Wednesday lunches, though Bird does not attend. One justice called him “gentlemanly,” a judge with a “first-rate legal mind.” Some justices view him as the most likely successor to Bird and say he would do a good job.

The view from outside the court is mixed. Phillip Johnson, a law professor at the University of California, Berkeley, and a Bird opponent, called Lucas “an able opinion-writer who’s trying hard to correct what he sees as an imbalance.”

A state prosecutor, an opponent of Bird who has handled several death penalty appeals, noted that Lucas rarely asks questions of attorneys who argue cases before the high court and issues brief opinions. “I don’t think he has demonstrated the kind of intellectual leadership that the next chief justice is going to have to have,” said the prosecutor, who spoke on the condition that he not be named.

Berkeley law professor Stephen Barnett, also a Bird opponent, said Lucas “holds up the conservative end” even more so than his predecessor, Richardson. But pointing to the brevity of Lucas’ opinions, Barnett said his writing “isn’t as vigorous as Richardson’s.” Lucas’ opinions, he added, are “solid, careful, considered” but “not especially” scholarly.

“I wish he would open up more,” Barnett said.

“Conceivably,” Barnett concluded, “that could make him a better chief justice. His not being so aggressively committed to one point of view might make him better at building consensus on the court.”

MALCOLM M. LUCAS, 59

Associate Justice California Supreme Court

Appointed: March 12, 1984

Named by: George Deukmejian

Background: U.S. District judge; judge pro tem, U.S. Court of Appeals; Los Angeles County Superior Court judge; Municipal Court judge; private law practice (in partnership with Deukmejian).

Organizations: Judicial Conference of U.S.; Los Alamitos School District; state Republican Central Committee; Rancho Alamitos Rotary Club; Long Beach Yacht Club; Navy League.

Personal: Enjoys golf and collecting books.