Lucas Will Face Array of Challenges

State Supreme Court Justice Malcolm M. Lucas, named by Gov. George Deukmejian to become the 26th chief justice of California, will face a wide array of formidable challenges in his new post, legal authorities say.

If confirmed as anticipated, the 59-year old Lucas, a veteran of nearly 20 years on the state and federal bench, will be expected to:

- Restore stability and public confidence in a court that has been battered by internal division and a bitterly fought election campaign that resulted in the unprecedented voter rejection of three of its members.

- Guide the court through a difficult transition as three new Deukmejian appointees are selected as replacements for the defeated justices and begin deciding cases in what is likely to be a new era of judicial moderation and conservatism.

- Master a staggering range of administrative tasks--from lobbying the Legislature to formulating courtroom policies--as the new head of the state’s far-flung judicial system.

Most of the judges, lawyers, academicians and other experts interviewed in the wake of Lucas’ selection believe he is equal to the job. But they also agree that the task will not be easy.

“He’s the right person for the job at a difficult time,” said Justice Edward A. Panelli, a Deukmejian appointee who joined the court last December. “He will try to bring people together.”

Former Justice Otto M. Kaus, a respected jurist who stepped down from the court last year, agrees that Lucas will make an “excellent” chief justice. But he warns that the election campaign is likely to have a lasting effect on the state judiciary.

“He will be the first chief justice to be faced with a court system where I fear political survival is going to be a fact of life after this election,” Kaus said. “Just what he can do to neutralize that, I don’t know. . . . Every four years we’re now going to go through this trauma--and it’s a tragedy.”

Lucas himself seems mindful of the task ahead, noting in a statement issued shortly after his selection that he would attempt to “heal some of the wounds and restore public faith” in the system.

The three Deukmejian nominations expected in the coming weeks will bring to five the number of appointments the Republican governor will have made to the seven-member court, clearing the way for a marked philosophical shift to the right. The defeated jurists--Chief Justice Rose Elizabeth Bird and Justices Cruz Reynoso and Joseph R. Grodin--constituted the bulk of the court’s liberal wing.

But most court observers are predicting that the change in course will be gradual, without immediate or sweeping reversals of large numbers of rulings made by the court in Bird’s nine-year tenure. And that should help maintain court stability, they say.

“Even though the governor clearly wants a redirection of the court, he’s not signaling the desire for a radical restructuring,” said Prof. John B. Oakley of the UC Davis School of Law.

Choice for Continuity

“With the selection of Justice Lucas, who’s been on the court for two years, the governor has opted for continuity. . . . The court has been through enough controversy and stress--and an emphasis on evolution instead of revolution will be good for everyone.”

Similarly, Kern County Dist. Atty. Edward R. Jagels, spokesman for a group of crime victims that opposed the three defeated justices, points out that judicial conservatives--the kind that Deukmejian is likely to appoint--are wary of overturning court precedents, even those with which they strongly disagree.

“The irony is that the governor’s appointees are likely to be far more reluctant to reverse past rulings than the justices they are replacing,” Jagels said. “They inherently have more respect for precedent.”

As chief justice, Lucas will have the opportunity to assert himself as the leader of the court in its decision-making process. Although his vote on a case is equal to those of other justices, a strong chief justice can be persuasive among colleagues and help fashion rulings that provide clear guidance to lower courts and litigants.

Although Chief Justice Bird ordinarily has been in the majority on court decisions, she has not been seen as particularly persuasive among the other justices. She frequently issued separate concurring or dissenting opinions expressing different reasoning from the majority.

Harmonious Workings

“A chief justice has to do his part to maintain collegiality within the court,” said Bernard E. Witkin, a longtime expert on the California court.

“Dissenting is not always the great thing it’s supposed to be. It’s agreement among the justices that helps stabilize the rules of law. If you find those rules changing all the time, you have a very serious problem maintaining the stature of the court.”

Panelli, for one, expects his colleague Lucas to be adept in the role of leader of the court and maintaining harmony among the justices.

“He is a very bright person and as a result you listen to what he says,” Panelli said. “On the other hand, I don’t believe he will try to impose his views on others. He respects everyone’s independence.”

Justice Stanley Mosk, the court’s senior member with 22 years of service, agrees that a chief justice can provide intellectual leadership and help build court unity. “But on the other hand,” he added, “it must be remembered that the chief justice is only one vote out of seven.”

Internal division has plagued the court over the years, with personal differences among the justices spilling into the open during public hearings held in 1979 over whether controversial decisions had been purposely delayed until after the 1978 election. The inquiry found no conclusive evidence of such delay.

Wide Reputation

Lucas, a reserved, self-effacing and well-liked man, is seen as the kind of individual who can maintain good relationships not only within the high court but throughout the legal establishment.

“I see no problem in any judge working with Justice Lucas,” said state Appellate Justice Elwood Lui of Los Angeles, president of the California Judges Assn. “He has the respect and admiration of judges and lawyers throughout the state.”

However, some court observers say Lucas’ refusal to publicly support the other justices who were on the fall ballot will undermine his relations with his colleagues.

“When your colleagues are under attack, and you’re ‘neutral,’ you’re actually opposing them,” said San Francisco attorney Robert L. Gnaizda. “The court was under attack during the election and the new chief justice failed to come to its defense. . . . That fact is not going to be lost on his brethren or the public.”

(Mosk and Panelli also remained neutral during the campaign.)

One of the biggest problems Lucas will face when he takes the helm will be the court’s growing backlog of cases. The caseload problem will be exacerbated by the inevitable delays that will occur as three new justices join the court. Many cases already argued but not decided will have to be heard again--and, meanwhile, new cases will still be going to the court.

Focus of Labors

In an attempt to reduce the docket before the transition, the current court has suspended oral argument for three months so it can concentrate on deciding as many already-argued cases as possible before Bird, Reynoso and Grodin leave office Jan. 5.

There are 92 such cases pending--including 42 involving the death penalty--and it is uncertain how many of those can be decided by the Jan. 5 deadline. A further complicating factor is that rehearings can be obtained after decisions are issued. Thus, new appointees to the court could help produce the four votes required for such reconsideration of cases--all adding even more to the justices’ overall workload.

In the California legal system, the chief justice also serves as the head of the nation’s largest state judiciary, which now includes more than 1,400 appellate and trial court judges and their staffs.

The chief justice has the far-reaching authority to appoint judges to sit temporarily on the high court or other courts in the state when another judge has withdrawn or otherwise does not participate in a case.

As chairman of the state Judicial Council, the policy-making arm of the state judiciary, Lucas will lead a 21-member group of judges, lawyers and legislators that does everything from gathering caseload statistics to deciding whether news cameras are to be allowed in courtrooms.

Leadership Role

The chief justice is in a position to lead the council in pushing for reforms within the system and/or obtaining new state laws to aid the judiciary.

From the start of her administration in 1977, Bird took an active and generally applauded role in running the state judiciary. She is credited with reducing “cronyism” in hiring, expanding and modernizing clerical staffs and equipment and helping bring changes to court procedures and policies.

Among other things, Bird successfully lobbied for legislative enactment of state financing for trial courts, which, when funds are approved to implement it, will ease the financial burdens of local government; proposed and helped obtain passage of a 1984 referendum allowing the state Supreme Court to limit the issues it must decide in hearing cases, thus easing its own workload and allowing the remainder of appellate court decisions to remain in effect; and helped set up a judicial arbitration program to encourage settlement of cases before trial.

“That’s a legacy to be proud of and one from which Justice Lucas will benefit greatly,” said Stephen T. Buehl, administrative assistant to the chief justice.

Nonetheless, Lucas still will face a long list of administrative tasks as he takes over from Bird.

Death Penalty Cases

One growing problem that Lucas and the rest of the court face is how to process the increasing number of death penalty cases, which go to the justices on automatic appeal directly from trial courts. Reviewing transcripts, briefs and other documents is a time-consuming task for the justices and their staffs--and more than 100 capital appeals are stacked up at the court awaiting decision.

Some authorities are supporting a constitutional amendment that would allow state appellate courts to review capital cases and thus help refine the issues in such cases before they go to the state Supreme Court, easing the justices’ workload. But critics of the proposal say it would merely add to the burdens of the appellate courts and cause even more delay for the overall process.

Lucas also will be called on to appoint 13 new members to the Judicial Council when those positions become vacant in February. That will place Lucas appointees in control where Bird appointees had held the balance of power in the past.

In addition, the powerful office of administrative director of the courts will be vacated next month with the retirement of Ralph J. Gampell, who served in that position during Bird’s tenure.