High Court Moves to Tackle Backlog Before Three Depart

The state Supreme Court took unprecedented action Thursday to increase the number of decisions it can issue before Chief Justice Rose Elizabeth Bird and two other justices defeated by the voters Tuesday leave office Jan. 5.

The court announced cancellation of oral arguments for three months in order to concentrate full-time on cases that have been argued and now are in the opinion-writing process.

The action means that Bird and Justices Cruz Reynoso and Joseph R. Grodin will continue to play key roles in an undetermined, but undoubtedly substantial, number of cases that now will be decided before they are replaced by as yet unnamed successors to be appointed by Gov. George Deukmejian.

A total of 96 cases have been argued before the court and are awaiting decision. Forty-two of these involve the death penalty, the volatile issue that was central to the campaign waged by conservatives to unseat the three justices.

Oral Arguments Shelved

Bird, in an announcement issued after a late-afternoon meeting by the court, said the justices were postponing oral arguments that would have been held on dozens of cases this month and December and January.

“The court unanimously decided to focus its attention on a number of cases which all the justices agreed to try to file before Jan. 5,” Bird said.

“The court will work as diligently as possible in the weeks ahead to ensure that its decisional case flow proceeds efficiently and thoughtfully.”

The court did not further specify the cases it would be trying to decide before the three justices depart. But a wide range of significant, often controversial issues could be resolved, depending on which cases are decided by Jan. 5.

One pivotal issue awaiting resolution is whether the court should reverse or modify two previous rulings barring imposition of the death penalty unless the jury specifically finds that the defendant intended to kill his victim. Prosecutors contend that those rulings, if left intact, could eventually force retrials in up to 75 capital cases.

Other cases the court could rule on in the next few weeks, for example, involve a challenge to a new state law requiring motorists to carry auto insurance or face fines and loss of driver’s license; a test of the power of the state to force local governments to pay the cost of state-mandated programs, and a challenge to the constitutionality of criminal laws against public drunkenness.

The court’s action Thursday came in response to a host of procedural questions raised after the unprecedented refusal by the voters to confirm the three justices. No justice on the ballot had been rejected since the state enacted a new system for judicial elections in 1934.

By law, Bird, Reynoso and Grodin are entitled to serve through the end of their terms Jan. 5, voting on cases and writing opinions as they would under ordinary circumstances.

There was some speculation, however, that one or more of the defeated justices might resign beforehand or otherwise not participate further in pending cases.

But that would have created a procedural nightmare for the justices, adding to the court’s already-heavy backlog. Without participation by the three justices, the court would have been left with only four members to decide pending cases--the bare majority for a decision--and undoubtedly would have been forced to reargue scores of cases later on with the participation of newly appointed justices or lower-court jurists sitting temporarily.

Replacement Process

Deukmejian has said he will name a new chief justice before the end of the month and then turn to selecting replacements for Reynoso and Grodin. But his nominees must be reviewed by a commission of the State Bar and then approved by the state Judicial Appointments Commission. No new justice could take office until Jan. 5.

Bird said in her statement she intended to “work full-time” until the end of her term “to provide for a smooth and harmonious transition.”

In deference to her unnamed successor, the chief justice said she would not ask the state Judicial Council to select a replacement for Ralph J. Gampell, the court’s administrative director, who is retiring Dec. 30. She decided to delay that action to enable the new chief justice to participate in the selection process, she said.

Bird also announced that she will make no further appointments to the Judicial Council so that the new chief justice can exercise that prerogative. The 21-member council, which sets administrative policy for the state judiciary, includes 13 judges appointed by the chief justice, as well as attorneys and legislators.