Turmoil Brings Shortage of Civil Law in This Territory

California’s appellate courts usually are objects of great public lack of interest, but that hardly describes the activity of recent months. The rejection of three Supreme Court justices and the naming of three new ones has brought attention to our court system and reaction to judicial philosophies, largely involving the death penalty and other areas of criminal law.

While understandable, such emphasis may obscure other considerations. Whatever the level of anxiety over criminal law enforcement may be, only a microscopic portion of the populace has personal contact with capital punishment, search and seizure or sentencing. Vastly more Californians are affected by accidents, zoning problems, lease disputes, marital dissolutions, defective products, employment relations, insurance coverage (and costs) and similar aspects of civil law.

In such matters the Legislature and the executive branch can draw only broad outlines. The unglamorous job of filling in blanks falls mostly onto appellate courts, with the anomalous result that this often-forgotten task has more effect than better-known actions have.

What effect may the election and the naming of new judges have in this regard? The first reality is that ideology and philosophy have little to do with this kind of judging; craftsmanship, tact and productivity are the qualities most involved and most needed.

One legitimate criticism of the last state Administration’s judicial selections is that while Edmund G. Brown Jr. opened the bench to highly qualified people whose viewpoints or group memberships previously denied the state their talents, he sometimes forgot qualification and selected judges only on the basis of category and ideology. Conversely, even observers who do not share Gov. George Deukmejian’s philosophies tend to admit that he has done an admirable job at finding adherents of those principles who are also highly able lawyers.

Thus it seems safe to predict that the quality of appellate judging itself will not deteriorate. There may be fewer changes, though, particularly in imaginative directions: Fewer new procedures are likely to come into being and, indeed, fewer decisions will be made at all.

This prospect is not necessarily all that bad. There can be too many decisions, too many rules to be applied by trial courts, too much ferment. Like all entities, judicial bodies sometimes need to assimilate and digest, and there has been plenty of food for that process.

With the new justices, each jury may no longer be allowed to try outdoing the last one in the amount of damages awarded, but the result may be a reversal of the insurance cost spiral. Perhaps not every vagary of product liability will breed huge verdicts, but the savings in product costs will please consumers, too. Perhaps some fired employees will have to get along without punitive damages, but many may gain from less enrichment of the few jackpot winners. Some swing--or even slowing--of pendulums may be expected, and may improve the state’s life.

Now the bad news: The workload, particularly the huge unswallowed lump of death-penalty appeals, already had the Supreme Court staggering. One former justice believes that the recent “bloodletting and hiatus” cost nine months of schedule delays. That may be overly optimistic. Previously the court averaged more than two years from the argument of a case to its decision. When the recent nominees become three-sevenths of the court’s membership, they will inevitably need months to settle in before their contributions surface, so this lead time will not soon improve.

Actually, the situation is even worse. The vast majority of less celebrated but equally indispensable decisions come from the middle-tier courts of appeal. While those panels have not felt the same tangible blows as the Supreme Court has, they have suffered notably from lack of guidance. With the Supreme Court essentially out of business since the beginning of the new year, the courts of appeal have filed 15% fewer published decisions (ones that affect other cases) than during the same part of preceding years. This result of the Supreme Court’s disarray is just beginning to be felt. Finally, there remains the specter of that death-penalty backlog, to which everybody seems to want to assign priority over the law that guides most Californians’ activities.

It thus appears that, whether or not California will have to ration justice in the next few years, it will surely face a shortage of civil law. To what extent and to what effect will depend first on the seven sorely pressed men who will be taking briefcases full of questions home every night and weekend. It may depend even more on the ability of the several hundred women and men who are the intermediate and trial-court judges to adapt to less input from above.