Justice Grodin Takes Head-On Approach to Election Challenge

California Supreme Court Justice Joseph R. Grodin had recently published a trail guide to the Sierra Nevada Mountains when he received a letter challenging the accuracy of the guidebook. The writer said he had found no sign of a trail which, according to Grodin’s book, led to the west shore of a particular mountain lake.

Grodin is a scholar who does not want to be known for blazing false trails either through the woods or the law. So, with chagrin, he replied to the letter that either the lake had moved or, more likely, that his book was wrong.

Grodin, an avid backpacker, said he later returned to the disputed trail and happened to come upon the letter writer. Together, he said, they discovered the cause of the confusion. It turned out that Grodin’s book had not been wrong, just a bit outdated. Since its publication, the Forest Service had rerouted the trail to the other side of the lake.

As Grodin approaches his confirmation election in November, perhaps his toughest challenge comes from those opponents who portray him as an anachronism--as the heir to a tradition of liberal activism that, they say, is no longer right for the times.

The 56-year-old justice has met the challenge head-on, taking his case before hostile audiences, including police and prosecutors, arguing that he is not a hard-line liberal, that he has upheld the death penalty several times, that he has given business a fair shake and that his voting record is not a facsimile of Chief Justice Rose Elizabeth Bird’s.

A former labor lawyer and one of the first appointees to the state’s Agriculture Labor Relations Board, Grodin came to prominence under Gov. Edmund G. (Jerry) Brown Jr., who appointed him to the ALRB in 1975 and to the Supreme Court in 1982. Grodin believes that it is his association with Brown, more than anything else, that has made him a target of conservatives in this election.

The link to Brown is “like the mark of Cain,” said one of Grodin’s supporters recently. Grodin believes that if voters, including conservatives, take the time to study his record on the court, the stigma will disappear.

Clearly, a number of people are comfortable with his record. A recent Times Poll showed Grodin going into the final month before the election with an 18-point lead. The polls have consistently indicated that he is better off than Bird and faring at least as well as Cruz Reynoso, the other justice facing organized opposition.

From the start of the campaign, when a group of San Francisco labor lawyers representing both management and union interests formed a committee to back his confirmation, Grodin has drawn some support from traditionally conservative quarters. Two law enforcement groups have come out for him--the California Organization of Police and Sheriffs, which also endorsed Reynoso, and the California Correctional Peace Officers Assn. The association opposes Bird and is neutral on Reynoso, according to Jeff Thompson, the group’s chief lobbyist.

Reasons for backing Grodin vary. For example, spokesmen for the two law enforcement groups say that while their members have mixed feelings about Grodin’s record on law and order issues, they are quite happy with his opinions on labor matters.

Los Angeles lawyer Robert S. Thompson, a former Court of Appeal judge and a Republican, said that even some who disagree with Grodin’s opinions support him because they respect his rigorous approach to the law.

“I call it wrestling with the devil,” Thompson said. “It’s when a judge struggles to make sure that the result he desires in a case comports with the fundamental restrictions of judging, with the precedents or statutes that should be observed.

“I disagree with Joe in many of his cases. But I know that his opinions reflect judicial reasoning. If there is an impediment to the direction he wants to go, he either won’t go there or he will find a carefully reasoned way around that impediment.”

Peering owlishly from behind thick lenses, Grodin looks learned. His friends regard him as a genial owl whose erudition draws respectful ribbing.

“He knows labor law in hideous detail,” said former Supreme Court Justice Otto M. Kaus who was Grodin’s neighbor when the two were on the court together.

Grodin’s Berkeley home, with its coffee table clutter of sheet music, sketchbooks and novels, reflects the preoccupations of a family of intellectuals. Grodin’s wife is a painter, one daughter is a lawyer and the other is a classical violinist.

Several Opinions Cited

Grodin’s supporters cite several civil and criminal opinions as evidence of a broad-mindedness that they say distinguishes Grodin from Bird and Reynoso.

One important area where Grodin differed with Bird involved medical malpractice.

Grodin supplied the key swing vote in several court decisions in 1984 and 1985 upholding legislation that put a cap on both damages and attorney fees that can be awarded in medical malpractice cases.

In a break with Bird and Reynoso last year, Grodin wrote the majority opinion in a case that upheld a key provision of Proposition 8, known as the “victims’ bill of rights.” It said that California courts could not, as they had, hold police to a stricter standard of unreasonable search and seizure than is required by the U.S. Supreme Court.

Grodin also parted company with the chief justice in several death penalty cases. Of the 43 capital cases that have gone before the court since his appointment, he has voted to affirm five death sentences. (Bird has voted to overturn sentences in all 59 capital cases that have gone to the court since her appointment in 1977. Reynoso has voted to affirm a death sentence once in the 45 cases that went before him.)

Has Voiced Qualms

Moreover, Grodin has expressed qualms about the justification the court has used most often in overturning death sentences.

In those cases, the court overturned death penalties because it said there was not a clear-cut determination of intent to kill. The court reversed death penalties in cases in which juries were not told by trial court judges to consider whether the defendant intended to murder his victim.

In a dissent written early this year, Grodin voted to affirm the death sentence of a murderer who had a “hit list” of intended victims that included the name of the person he was convicted of killing. Referring to the hit list, Grodin argued that evidence of intent can be obvious to a jury even though the judge neglects to instruct them on it.

In campaign appearances, Grodin has stressed that he votes as often with Justice Malcolm M. Lucas, an appointee of Republican Gov. George Deukmejian, as he does with Bird. It is not an idle claim.

Differed With Bird

“In 1985, Grodin and Bird signed the same opinion less than 50% of the time. Only Lucas had a lower rate of opinion alignment with Bird,” according to a study done by Barry Winograd, an administrative law judge for the California Public Relations Board. Winograd’s study was published by the California Journal.

“Viewed from another angle,” Winograd wrote, “Lucas agreed more often with Grodin in 1985 opinions than Grodin did with Bird.”

Despite arguments that he is not a clone of the chief justice, Grodin continues to face opposition by Deukmejian and the three largest groups campaigning against Bird and Reynoso. The three groups, Californians to Defeat Rose Bird, Crime Victims for Court Reform and the Law and Order Campaign Committee, have raised more than $5 million in their efforts to convince voters that the three justices are soft on crime and unfair to business.

Philip Johnson, a law professor at the University of California, Berkeley, who has become academia’s leading critic of the court, sees Grodin as, perhaps, the most cautious liberal of three--but one, nevertheless, willing to mold the law according to his own beliefs.

‘Liberal Sympathies’

“My impression of Grodin overall is that he is an able legal scholar of strong liberal sympathies who has been taking an increasingly moderate position as the court’s public standing has become precarious,” Johnson wrote in a recent article about the court and the coming election.

“On a somewhat differently balanced court, with more support from sensible colleagues, I believe that he would be an effective and constructive participant in the deliberative process. I would not rely on him as a voice of moderation, however,” Johnson said.

Grodin’s opinions in at least four cases, three civil and one death penalty, have drawn fire from his political opponents.

In a 1985 sex discrimination case, Grodin wrote that a Santa Cruz boys club violated a state civil rights law by excluding girls. Grodin was criticized for declaring that the act, which applies to businesses, should also encompasses nonprofit community service organizations such as the boys club.

In Johnson’s view of the boys club opinion, Grodin misused the civil rights legislation in order to serve his own desire to stamp out sex discrimination wherever he finds it.

Opinions Criticized

Grodin was accused of denying a landlord due process when he voted in 1984 to uphold a Santa Monica statute that blocked an apartment house owner from tearing down his building and selling the property. And he was criticized for another 1984 majority opinion that said the owner of a stolen truck could be held liable for injuries that occurred when the man who stole the truck caused an accident. Grodin wrote that the truck owner was subject to liability because he left the keys inside the truck while it was parked in a high-crime-rate area.

Perhaps Grodin’s most controversial opinion grew out of a 1984 death penalty case. The defendant in the case was convicted and sentenced to death for kidnaping and murdering a 12-year-old girl. In a majority opinion written by Grodin, the court reversed the conviction and the death penalty, stating that evidence of prior crimes by the defendant should not have been introduced during the trial because the evidence was prejudicial to the defendant.

The court ruled that the past crimes, all violent offenses against children, were not similar enough to the crime at hand to be admissible.

A “white paper” published by the California District Attorneys Assn. refers to the case as one of the court’s most “notorious” death penalty reversals and says it drastically restricts the ability of prosecutors to build cases against serial criminals.

3 Years on Appellate Court

Grodin went to the Supreme Court after three years on the state’s Court of Appeal. When he joined the Supreme Court, it was still regarded as one of the great courts in the nation, although its reputation was beginning to be questioned. The court had established its reputation on the basis of opinions championing the rights of criminal defendants, minorities and the poor. While the court continued to uphold that tradition, critics said the quality of its work and the credibility of its opinions were declining.

These days, Grodin says that some of the liberal thinking characteristic of the court’s halcyon years should be re-evaluated.

“The times in which we are now deciding cases are different from the 1950s and ‘60s when the court was first receiving national acclaim. The ‘60s especially was a period when change was in the air and when society tended to support new ideas. But some of those ideas created problems,” Grodin said.

“Now the court has a different role to play. We’ve got to do a kind of cautious rethinking about where we are going with some of the precedents set during the ‘60s. I guess that implies a court that is not going to be as boldly creative.”

Grodin also said recently that it is wrong for a judge to be rigidly ideological and that if one is “blinded by ideology,” it is grounds for voting the judge out of office. He quickly adds that he does not believe any of the justices on the Supreme Court are so afflicted.

Doesn’t Reject Label

Yet, Grodin says he is not struggling to erase the liberal label he bears.

“How do I react to it?” he asked. “I don’t regard liberal as a bad word. I’ve always thought of the liberal attitude as one of skepticism, as a willingness to doubt. I think that is quite healthy.”

As a campaigner, Grodin is a mixture of the politician he says he is not and the teacher he once was.

Speaking recently to a group of union members, he reminded them that he is a former labor lawyer, and he reviewed the court’s opinions expanding damage awards for workers who have been unjustly fired or hurt on the job.

In the next breath, he told the union members they should not vote for him because they agree with his opinions in labor cases but because they have a stake in “the rule of law” that he tries to uphold.

Stress on Reasoning

A few days later, before an audience of lawyers, Grodin made no effort to tout the court or stump for votes. Instead, he talked about the danger of an election where the debate centers on “the bottom line of decisions” without looking at the reasoning that led to the decisions.

“The fact that we ask judges to write down their opinions is evidence that we value the quality of their reasoning as much as the results of their decisions,” he said.

A former law professor who has taught at the University of Oregon, Stanford University and Hastings College of the Law, Grodin has attracted Republican supporters, such as Robert Thompson, on the basis of his own reputation for thoughtful jurisprudence.

Grodin’s non-liberal friends hope that voter zeal to change the court burns out before it gets to him. They point out that he does not have to be defeated in order to make room for a new, more conservative majority. The defeat of Bird and Reynoso would be enough to give Deukmejian--assuming that he is reelected--the opportunity to build a new majority.

Others on Ballot

The governor already has appointed two justices, Lucas and Edward A. Panelli. (Both are on the November ballot; neither is facing organized opposition.)

“Going after someone like Joe Grodin, whether or not you agree with him, is a mistake. It’s bad for the court because it discourages able people from wanting to be judges,” Thompson said.

Veteran political consultant Bill Roberts disagrees. He is the political consultant hired by Crime Victims for Court Reform to run their campaign against Bird, Reynoso and Grodin. Roberts said that all three justices are guilty of judicial arrogance in their reluctance to enforce the state’s death penalty law. And, he said, the court will be better off without them regardless of who appoints their replacements, whether it is Deukmejian or his Democratic opponent for governor, Los Angeles Mayor Tom Bradley.

Roberts said he is not discouraged by polls that show Grodin and Reynoso ahead by widening margins.

“The only thing that is protecting them is their anonymity, and they’re both going to be well known by Election Day,” Roberts said. “We’ll defeat both those people.”

JOSEPH R. GRODIN, 56

Associate Justice

California Supreme Court

Appointed: Dec. 2, 1982

Named by: Edmund G. Brown Jr.

Background: Presiding justice, Court of Appeal, 1st District; associate justice, Court of Appeal; member, Agricultural Labor Relations Board; private law practice; professor, Hastings College of the Law; arbitrator, American Arbitration Assn.

Organizations: San Francisco Jewish Community Relations Council, ACLU, California Judges Assn.

Personal: Enjoys backpacking, tennis, jogging.