Defeated Justices to Affect Key Decisions Before End of Terms

Chief Justice Rose Elizabeth Bird and two other members of the state Supreme Court who were defeated in the Nov. 4 election could leave a heavy imprint on a wide range of important cases before they leave office in January.

In an unprecedented effort to reduce the docket before new members join the court, the justices are expected to decide dozens of cases in the next seven weeks--with Bird and Justices Cruz Reynoso and Joseph R. Grodin writing opinions and casting key votes in the last of their official duties.

Among the 93 cases that have been argued and could be decided by year’s end are several significant and controversial issues--ranging from limits on police authority to detain suspected truants to the ability of unmarried persons to sue for the death of a live-in lover.

Focus on Death Penalty

Nearly half the cases--42 in all--involve the death penalty, the hottest issue in the election.

There was some speculation that one or more of the defeated justices, although fully empowered to serve until the end of their terms Jan. 5, might resign or otherwise not participate in pending cases.

But such a withdrawal undoubtedly would have forced the court to delay scores of cases for reargument next year after Gov. George Deukmejian has named successors to Bird, Reynoso and Grodin and their nominations have been approved by the state Judicial Appointments Commission.

“It’s a wise move and a completely proper one for those justices to continue participating,” said Prof. Stephen R. Barnett of the University of California, Berkeley, Law School, a frequent critic of the court. “Nothing in the law compels them to step down, and if they did, it would only mean a longer interregnum before new justices came on the court.”

As yet, there has been no sign that any of the defeated justices intends to play less than a full role in the decision-making process.

“I have participated in the majority of those cases (before the court) and I will be ready to participate in the remainder,” Grodin said last week. “There will be no cases that will not be filed for my lack of participation.”

In two post-election cases decided last week, Bird issued a 66-page opinion for the court overturning a $4.6-million libel award against the San Francisco Examiner and wrote a sharply worded seven-page dissent to a decision involving default judgments in civil cases.

The justices took a highly unusual step to enable them to concentrate on issuing decisions by canceling oral arguments for three months on cases they have agreed to hear. Ordinarily, the court holds oral argument once a month, hearing cases over a period of several days.

Arguments Delayed

The court had set 11 cases for argument last week in Sacramento, including one case testing the power of California officials to invoke state antitrust law to block corporate mergers, another raising a challenge to a municipal ban on political advertising on public buses and three cases involving imposition of the death penalty.

Those cases, along with dozens of others that would have been argued in December and January, now will be delayed until the new justices join the court.

The seven-member court, in a statement issued by Bird, said it had decided unanimously to focus its efforts on “a number” of pending cases the justices had agreed to decide before Jan. 5.

In some instances, losing parties may be able to obtain rehearings from the court after it is joined by new justices. Under court procedures, losers have 30 days after a decision is issued to petition for a rehearing. The court, if it wishes, can extend that period to 90 days.

Perhaps the most closely watched cases involve the death penalty. Opponents of the three defeated justices concentrated their campaign on this issue, charging that the justices’ repeated votes against executions thwarted the will of an electorate that had given its overwhelming approval to capital punishment.

The court has been asked to reverse or substantially modify rulings it made in 1983 and 1984 barring death sentences when a jury has not specifically found that the defendant intended to kill his victim. Prosecutors have warned that the two rulings ultimately could require retrials in up to 75 capital cases.

Issues Involved

These are some of the other questions the justices could decide before Bird, Reynoso and Grodin leave the court:

- When may police detain minors they suspect are truants? In a case widely awaited by educators, civil libertarians and law enforcement authorities, a state Court of Appeal ruled in 1984 that police may not hold a young person for truancy unless they have “actual knowledge” that he is absent from school without good reason.

The decision is likely to have a broad impact on the 1.4 million full-time high school students in California, particularly those in big cities. In Los Angeles, for example, about 17,000 students were detained by police in 1984-85 alone under a special anti-truancy program.

- Can an unmarried person bring suit over the death of his live-in partner, just as a married person can for death of a spouse? With appellate courts split on the issue, the justices are being asked to permit a man whose partner died in an auto accident to sue the driver of the other car for the loss of love and support of the woman and for the negligent infliction of “severe emotional distress.”

The case could have wide ramifications, extending new rights to unmarried couples and, perhaps, even to homosexuals who live together. According to the U.S. Census, there were 1.9 million unmarried males and females living together as couples in 1984, more than triple the number in 1970.

- Does use by the Los Angeles Police Department of a motorized “battering ram” to enter the fortified houses of suspected drug dealers violate the constitutional guarantees against unreasonable search and seizure?

Civil liberties groups say the practice is “inherently dangerous” and should be prohibited. Lawyers for the Los Angeles police say the device is sometimes necessary to gain entrance to drug hide-outs and reduce the danger of armed resistance by suspects.

- Is the new state mandatory auto insurance law constitutional? The law, establishing fines and license-suspensions for failure to obtain liability insurance, was intended as a crackdown on the estimated 2 million motorists who drive without insurance.

But a challenge to the legislation says it violates due process because drivers in some areas cannot afford to pay exorbitant rates of up to $2,000 a year for minimum coverage.

- Is Gregory Ulas Powell, convicted in the notorious “Onion Field” killing of a Los Angeles police officer, entitled to parole?

The case, dramatized in a best-selling book by Joseph Wambaugh, raises a challenge to a 1982 decision by the state Board of Prison Terms to rescind Powell’s parole on the grounds there was a “substantial likelihood” that he would pose a danger if released. Powell’s lawyer contends that the board had been improperly swayed by public protests over the impending release.

- Does a state law authorizing arrest and prosecution for public drunkenness violate constitutional prohibitions against “cruel and unusual” punishment?

Lawyers representing Robert Sundance, a recovered alcoholic, and other plaintiffs in a far-reaching challenge to the law contend that public intoxication is symptomatic of the disease of alcoholism and that inebriates should be diverted to civil detoxification centers. Attorneys defending the law say that cities lack adequate facilities for treatment and that without the ability to arrest, police would be powerless to remove severely intoxicated persons from public places.

- Should the court restrict an employer’s long-held right to fire workers “at will?”

Under review is a challenge to that doctrine by an executive who sued his former employer for wrongful discharge. A ruling is being widely awaited by employers and others to see whether employees can win damages for dismissals made in “bad faith”--or dishonest or deceitful reasons--and in violation of an implied promise to terminate only for good cause.

- How much power does the state have to force local governments to pay the costs of state-mandated programs?

At issue is a challenge brought by Los Angeles County and other local governments to a requirement that they pay for increases in workers’ compensation benefits they say will amount to tens of millions of dollars statewide. Attorneys say the ruling could affect a wide range of other programs mandated by the state.