Post-Bird Era Court Changes to Come Slowly

As the era of Chief Justice Rose Elizabeth Bird draws to a close, a newly constituted state Supreme Court will face a challenging transition marked by a backlog of hundreds of cases and an array of far-ranging issues.

Moreover, it will be weeks--perhaps months--before the three new justices to be named by Gov. George Deukmejian actually take office, adding to the difficulty of the changeover.

“The court will be coping with a tremendous caseload and transitional problems of the greatest magnitude,” Bernard E. Witkin, a longtime court authority, said Saturday. “The justices have their work cut out for them.”

Busy in Last Days

The court went into high gear in recent weeks in an attempt to decide as many cases as possible before the departure from office Monday of Bird and Justices Cruz Reynoso and Joseph R. Grodin. All three were defeated in the Nov. 4 election.

But it left undecided a wide variety of cases--ranging from whether juries must specifically find that murder defendants intended to kill their victims before they can be sentenced to death, to whether unmarried people can win damages for the death of a live-in lover, as married people can for the death of a spouse.

In all, the court has issued 35 decisions since the election, including 16 on Friday. But 60 cases--35 involving the death penalty--that had been argued remained undecided and most now are likely to be reargued. And more than 300 others--well over one-third of them capital cases--await review or other action.

In addition, some of the cases decided recently by the justices could be heard again if the new court grants petitions for rehearings. Such reconsideration, which is unusual, can be ordered within 90 days after a decision is issued.

Aggravating the backlog is the inherently slow process of seating successors to the three departing justices. Deukmejian last week released the names of six judges he is considering naming to the court and has sent that list to a commission of the California Bar that evaluates judicial nominees.

Finished by Spring

But before the evaluations are completed and the governor selects three for nomination and the state Judicial Appointments Commission confirms the nominees, it is likely to be springtime.

Meanwhile, the governor is expected soon to formally nominate a current member of the court, Justice Malcolm M. Lucas, for elevation to chief justice. Lucas, a former law partner of Deukmejian, is likely to be confirmed soon after, with Justice Allen E. Broussard serving in the interim as acting chief justice.

When all the new members of the court are sworn in, Deukmejian-appointees will hold five of the seven seats, and are widely expected to provide a moderately conservative majority to a court that has been led by liberals for decades.

Most of the 60 argued but undecided cases are expected to be set for reargument by the new court. However, some could be decided without reargument if the four remaining justices are able to agree unanimously, providing the four votes necessary for a decision. The new court also could act to reinstate lower court rulings in any non-capital cases it chooses not to decide itself.

Variety of Questions

Those 60 cases raise many major legal questions, including:

- Can a man whose female live-in partner was killed in an auto crash sue the driver of the other car for loss of love and support of the woman?

- Can the state require all motorists to carry liability insurance or face loss of their drivers’ licenses?

- Can police detain minors they suspect are absent from school without valid reason?

- Can mobile home parks, unlike condominiums and apartments, bar families with children?

- Can the employer’s traditional right to dismiss a worker “at will” be limited to permit a fired employee to sue for violation of an implied promise to dismiss only for “good cause”?

One of the most complex and potentially far-reaching issues that has been argued but remains undecided centers on whether a defendant can be sentenced to death when a jury has not been instructed it must find specifically that he intended to kill his victim.

State prosecutors claimed that past rulings establishing such a requirement could eventually require scores of retrials, and they succeeded in obtaining a rehearing from the court to consider reversing or modifying its previous decisions.

Left to New Court

There had been some expectation that the court might decide the issue before the three outgoing justices left office. But it now appears the issue will have to be argued yet again before a new court.

The state attorney general’s office also is expected to seek rehearings in at least two controversial cases the court decided in its last-minute rush of rulings. One cleared the way for release on parole of “Onion Field” killer Gregory Ulas Powell. The other barred the use of improperly obtained incriminating statements to challenge a defendant’s truthfulness later in a trial.

The three departing justices, all liberals, provided key votes for majority opinions in both cases and state prosecutors are hopeful that a new and probably more conservative court will reverse the two rulings.

Topics for Hearings

The new court will be hearing scores of new cases in the coming months raising a variety of key issues, among them:

- Whether state authorities may establish random roadblocks to catch drunk drivers.

- Whether judges can delete statements from a candidate’s ballot argument they find “false and misleading.”

- Whether potential jurors must be summoned from as far as 20 miles away from the courthouse to ensure that defendants are tried by a jury reflecting a fair cross-section of the community.

- Whether the controversial recruiting techniques of Rev. Sun Myung Moon’s Unification Church are constitutionally protected from fraud suits and false imprisonment suits by former members.

- Whether the state violates the Constitution by prohibiting loitering near public restrooms for the purpose of engaging in or soliciting lewd acts.

- Whether political protesters may be barred from using a privately owned shopping center to perform a play attacking U.S. foreign policy.

- Whether the State Bar can use the mandatory membership dues of attorneys for lobbying and other political purposes.

- Whether the state is complying with a landmark 1976 ruling in the case of Serrano v. Priest, which required the elimination of substantial disparities in spending by local school districts.