Justice Panelli--a Low-Key Approach to Election

On Nov. 2, just two days before the general election, state Supreme Court Justice Edward A. Panelli, an ardent runner, plans to be competing in the New York City Marathon--nearly 3,000 miles away from the electorate that will decide whether to confirm him and the five other justices on the ballot.

Not that Panelli is overconfident. He still does not intend to sign an apartment lease here until after the election.

This cautious, low-profile approach to the fall campaign fits easily with a veteran jurist variously regarded as a moderate, a pragmatist and a conciliator. Here is a judge so non-controversial that he has been nominated to the bench at different times in his 14-year judicial career by Govs. Ronald Reagan, Edmund G. Brown Jr. and George Deukmejian.

Facing no organized opposition, Panelli is conducting no active campaign--and sees no reason to stir the waters with partisan comment. “If they’re not shooting at you, don’t join the war,” he says.

Panelli even declines to say how he will vote in the bitterly fought court contest in which Chief Justice Rose Elizabeth Bird and Justices Cruz Reynoso and Joseph R. Grodin have been targeted for defeat and Justices Stanley Mosk and Malcolm M. Lucas also are on the ballot.

“Who I vote for and my reasons for it I intend to keep to myself,” he said in a recent interview. “Even a neutral statement will be construed by people as an endorsement or lack of endorsement. That pulls you into the conflict and I don’t want to get involved with it.”

Panelli does not view the election in the momentous terms of commentators who see the court at a historic crossroads, with the outcome determining the future independence of the judiciary.

“I don’t see what’s happening now as necessarily what we can anticipate in the future,” he says of the campaign. “I think we have an unusual situation because of the personalities involved. . . . I don’t see judges changing their opinions based on what they think the electorate is going to do. You call it as you see it.”

The 54-year-old justice has served on the state high court only since December and as yet has written no major opinions. But he could play a pivotal role in the court’s current reconsideration of several death penalty cases--as well as in any philosophical realignment should Deukmejian get the chance to make additional appointments to the court.

Panelli joined three other court members in narrow 4-3 votes to rehear three capital cases that could result in a reversal or substantial modification of previous rulings that prosecutors say may ultimately require scores of retrials in cases where juries issued death sentences without specifically finding the defendants intended to kill their victims. A fourth such case is being reconsidered by order of the U.S. Supreme Court.

“I can’t predict what my position will be in those cases when they are decided,” he says. But he voted to rehear the cases, he explains, so that he will have “a voice” in the court’s ultimate ruling on a critical issue.

Panelli and Lucas, Deukmejian’s two appointees, are regarded as the court’s two most conservative members. Should the Republican governor win reelection and have further opportunities to fill vacancies, the philosophical balance of the court could shift dramatically, ending the liberal dominance that has existed for decades.

Kern County Dist. Atty. Edward Jagels, head of a group opposing the confirmation of Bird, Reynoso and Grodin, is favorably impressed by Panelli.

Newness Cited

“He’s so new to the court it’s a little hard to tell how he’ll turn out,” says Jagels. “But he appears to be a non-ideological, moderate and common-sense sort of judge.”

Edward Alexander Panelli was born in Santa Clara to Italian immigrant parents with third-grade educations who worked as laborers in the area’s fruit packing and canning industries. The family returned briefly to Italy when Panelli was an infant, and it was not until they returned to Santa Clara and he had turned 5 that he learned to speak English.

Panelli recalls encountering prejudice and hostility as a boy but credits his parents for teaching him that hard work and perseverance can overcome social and economic obstacles.

In practical terms, that meant taking on such jobs as harvesting onions and apricots, shining shoes for soldiers stationed nearby and selling newspapers on the street corner--sometimes to customers who forgot to place a coin in his outstretched hand.

Decades later, his 90-year-old mother, Natalina, would stand in his comfortable home with a swimming pool and a beautiful view and ask: “Who would have believed you’d ever be in this situation?”

In appearances before college audiences, Panelli has a special message for newly arrived minority students: “This country gives you an opportunity but you have to work for it.”

Failed Opportunities

He admits it bothers him when he sees others failing to take advantage of opportunities as he did. “But I recognize that there are instances were there is greater prejudice to certain groups and the opportunities may not come as easy,” he says.

Since his elevation to the high court, Panelli, married and the father of three sons, has been commuting between the court’s headquarters here and Saratoga, 50 miles to the south. After the election, if confirmed, he plans to rent an apartment here to ease his travel burdens.

Known for his dedication and competitiveness in sports, Panelli recently gave up tennis to concentrate on long-distance running--a pursuit that is symbolized by a bronzed Brooks running shoe (a gift from his wife, Lorna) that is displayed in a corner of his chambers.

Until court demands curtailed his workouts, Panelli was logging up to 70 miles of running a week, with individual training runs of up to 24 miles. In recent weeks, he has been rising as early as 5 a.m. to get in enough mileage to be ready for the marathon Nov. 2.

Panelli received degrees in political science and law from the University of Santa Clara and served in the U.S. Army Reserve before beginning a general law practice in a small San Jose firm in 1955. He has continued a close and loyal relationship with the university, currently serving as chairman of its board of trustees.

“The thing that impresses me most about him is his judgment,” says Santa Clara’s president, the Rev. William J. Rewak, who has known Panelli for 15 years.

Viewed as Perspicacious

“He knows how to carry out a decision--what steps to take, whom to talk to, what bases should be covered . . .” says Rewak. “He’s very good at bringing two people together and getting them to a common middle ground. He understands people well and knows when to give in and when not to.”

Panelli was appointed to the Santa Clara Superior Court by Reagan in 1972, serving as a presiding judge, probate judge and juvenile court judge over the years.

In late 1982, Brown included Panelli among 18 nominees to newly created posts on the state Court of Appeal. Panelli, as a Republican and a Reagan appointee to the judiciary, might not have seemed a likely appointment from a Democratic governor--but his experience, sound reputation and apparent lack of ideological bias apparently induced Brown to name Panelli to the bench.

“His name kept coming up,” recalls a former Brown Administration official. “It was as simple as that.”

Panelli was picked for a new appellate court in San Jose, along with Appellate Justice Sidney Feinberg of San Francisco and Jerome Cohen, a lawyer for the United Farm Workers--both regarded as liberals.

Confirmations Blocked

But then-Atty. Gen. Deukmejian, as a member of the state Judicial Appointments Commission, blocked the confirmation of all three shortly before he was to take office as governor. Deukmejian said he regarded Panelli as qualified for the job--but that Feinberg and Cohen were not. The three posts were left unfilled.

Less than a year later, however, Deukmejian made Panelli his first appointment to the appellate bench, naming him to a vacant spot on the state Court of Appeal in San Francisco. Then in August, 1984, the governor made him presiding justice of the new state Court of Appeal in San Jose. Finally, the governor in November, 1985, elevated Panelli to the state’s highest court, naming him to succeed Justice Otto M. Kaus, who retired.

Shaping a Record

Time will tell whether Panelli turns out to be as conservative as expected. In one recent case, he joined Lucas and Mosk in dissent when the court majority overturned the capital conviction of a Pasadena man that it said had been improperly tried at the same time for two separate and unrelated murders. But, as with any justice, it likely will take years of opinions and votes to shape a record that can be reliably assessed.

On the Court of Appeal, Panelli impressed colleagues with his open-mindedness and willingness to compromise.

“The decision-making process is collaborative--but there are appellate judges who decide their views independently and then give them to their colleagues on a take-it-or-leave-it basis, writing either a majority opinion or a dissent,” says state Appellate Justice J. Anthony Kline of San Francisco.

“But that’s not Ed Panelli’s style. He will present his views in a tentative way and then consult with others in a collaborative process, testing his ideas against theirs. And that’s the best way for a judge to operate in the appellate process.”

For his own part, Panelli believes he can make good use of his long and varied legal experience to fashion opinions that can be clearly understood and implemented by lawyers and judges--writing, as he puts it, “more for the troops in the field . . . than law professors.”

“I don’t think I’m coming on from an ideological point of view,” he adds. “But obviously on a lot of these issues I may be more conservative than other members of the court.”

As a judge who already has won repeated nominations from the governor, there is inevitable speculation that if Bird is defeated by the voters, Deukmejian might name Panelli chief justice.

Thus far, most such speculation has focused on Lucas, the governor’s former law partner and a former federal judge who was his first appointment to the state high court. But there is still talk of Panelli as a dark-horse candidate for the job.

The governor’s chief of staff, Steven Merksamer, is reluctant to indulge in such talk. But he does say: “We’ve not known Justice Panelli nearly as long as we’ve known Justice Lucas, but the governor has a very high regard for him as well. . . . The governor has exceptionally high respect for both of these justices.”

Panelli brushes aside the prospect of one day leading the court and is quick to remind that “we still have a chief justice.”

“I don’t think that’s in store for me,” he says. “I already occupy a position that in my wildest dreams I never believed possible. I have absolutely no interest in being a chief justice. . . . I’m happy doing what I’m doing.”