DEUKMEJIAN’S SUPREME COURT NOMINEES : Marcus M. Kaufman : He’s Scholarly and Controversial, and Has Criticized Recent Supreme Court Decisions

Marcus M. Kaufman, 57, is perhaps the most scholarly--and controversial--of Gov. George Deukmejian’s nominees to the state Supreme Court.

Most recently, a report in the Sacramento Bee raised questions over whether Kaufman might have violated judicial ethical codes by writing letters to state officials in behalf of a foreign-born physician who is a family friend.

The physician, Dr. Aramais Paronyan of Van Nuys, had passed a licensing exam for foreign-trained doctors but has not yet taken a training course he needed to be licensed.

Under the state Board of Medical Quality Assurance’s interpretation of a new law, it appeared that Paronyan would not be able to begin the training course within a prescribed four-year period following the exam.

Kaufman wrote three letters to state officials, including one on office stationery, saying the board had misinterpreted the law and noting that the training program would not be available until after the deadline the board had set.

Board Eased Deadline

Later, the board issued a reinterpretation easing the previous deadline slightly and apparently enabling Paronyan and other physicians to enter a training program to be held this summer. Board officials denied they had been “pressured” by Kaufman and said they had received similar inquiries on the issue in behalf of other doctors affected by the new law.

The Bee report raised questions over whether Kaufman had violated ethical prohibitions against judges practicing law or lending the prestige of their office to help others.

Kaufman, in a reply to the newspaper, denied any impropriety, saying he had asked for no special favor for Paronyan but merely sought “a fair and lawful reinterpretation” of the law.

He said he felt such communications with a stage agency on a one-time basis did not constitute “the practice of law,” and noted that state ethical codes allow judges to “consult with an executive or legislative body or official . . . on matters concerning the administration of justice.”

He said further he had told the officials that he was writing “completely in my private, unofficial capacity” as a friend of Paronyan and that if the issue were raised in formal proceedings, he would have “nothing further to do with the matter” either as a representative of the doctor or a judge.

In the past, Kaufman, a 17-year member of the Court of Appeal, has been critical of state high court decisions. Last year, for example, he wrote in one case that court decisions that prohibit landlords from barring families with children were “legally and practically inane.”

He also wrote an opinion when the 4th District Court of Appeal in 1983 struck down a mobile home park rent control ordinance as a “naked taking” of the owners’ private property rights without just compensation.

In a more recent decision, Kaufman, writing for a unanimous appellate panel, held that evidence from a breath test could be used to convict an allegedly intoxicated motorist even though the arresting officer failed to advise the motorist that he could choose among blood, breath and urine tests.

Citing provisions of Proposition 8, the 1982 initiative requiring the admission of “all relevant evidence” that would be admissible under federal rulings, Kaufman held that excluding the breath test evidence was “not a necessary or appropriate” response to the officer’s failure to give the motorist the proper advisements.

On another front, in an article written in 1979 for the San Bernardino Sun editorial page, Kaufman contended that the “vast majority” of the state’s judges would agree that some state Supreme Court rulings citing procedural technicalities to reverse the convictions of lawbreakers were “absurd.”

Kaufman also criticized the U.S. Supreme Court’s record on criminal cases under Chief Justice Earl Warren, but defended that court’s record under former Chief Justice Warren E. Burger as “far more in touch with reality.”

He added, however, that the real harm from “nonsensical” decisions by the state’s highest court was not that they were resulting in hordes of felons being freed, but rather that they eroded public confidence and support of the law.

Kaufman wrote that the citizenry could still take action--without undermining an independent and impartial judiciary--by holding the governor who appoints judges accountable at the polls and by writing to judges themselves to express their concerns.

In “extreme situations,” where a jurist “consistently and persistently makes decisions which are not legally compelled and which ignore the public interest,” voters should exercise their prerogative to refuse to reelect that judge or Times in 1985, Kaufman noted that he had not described himself as a “redneck with a high IQ.” and that he did not consider himself an intellectual. “To the extent that (labels) mean anything, I would classify myself as a conservative with an open mind.”

Kaufman was also at the center of a dispute that reached the state Supreme Court in 1981 after he commented from the bench that the state Agricultural Labor Relations Board at one time had been in “collusion” with the United Farm Workers union.

The UFW sought to disqualify Kaufman from deciding cases involving the board and the union. The late Justice Louis F. Burke, then a retired justice sitting by special assignment, ordered Kaufman not to sit in nine pending Agricultural Labor Relations Board cases because it was “probable that, by reasons of bias . . . a fair and impartial hearing cannot be had before him.”

But later the state Supreme Court set aside Burke’s order, finding that the only way an appellate justice may be removed in such situations is by his own volition.

Even six years after the dispute arose, the mention of Kaufman as a candidate for the state’s highest court evoked concern among his detractors in the labor movement.

Praise From Conservatives

“I question his reputation for scholarliness,” said Diana Lyons, counsel for the UFW in Sacramento. “I interpret the term ‘scholarly’ to mean a judge follows the law and uses it accurately . . . and I see no evidence of that with Justice Kaufman.”

But the justice draws praise from conservatives. “He is very highly regarded for his scholarly background,” said Ronald A. Zumbrun, president of the Pacific Legal Foundation, a conservative public interest law firm. “If you were going to write the criteria for the qualities that a judge should have, he fits the pattern. He researches and interprets the law--instead of making it himself.”

Kaufman was born in Norfolk, Va., and raised in Hollywood. His interest in law began to develop in junior high school, and as a youth he used to go to the federal courthouse in Los Angeles to watch the proceedings.

He went to UCLA, where he became a member of Phi Beta Kappa, and then served as an Army lieutenant during the Korean War before returning to graduate from the USC law school, where he was first in his class. He worked as a law clerk for Justice Roger J. Traynor of the state Supreme Court, taught at USC and then went into private practice in San Bernardino. He is married and the father of three children, one deceased.