Many State Jurists Cast Vote to Oust 3 on Supreme Court

At least 434 of California’s 1,579 active judges voted against one or more of the state Supreme Court justices who ran in last year’s bitterly contested retention election, according to a Times survey of the state judiciary.

The reason most commonly cited by the judges who cast negative votes was that some of the high court justices, in making important decisions, had substituted their personal beliefs for the law.

In explaining his vote, one judge wrote of the justices: “They were guilty of malfeasance because they put their attitudes of social reform above the legal principles of stare decisis, “ the doctrine that requires courts to abide by the precedents of earlier decisions.

Some Favored Justices

Of the 745 judges who responded to the survey, 249 said they did not vote against any of the justices who were up for reconfirmation and 62 did not respond to that question.

Expressed another way, 64% of the judges who answered the question said they voted against one or more Supreme Court justices. In last November’s election, 66% of the electorate voted against retaining then-Chief Justice Rose Elizabeth Bird. Justice Cruz Reynoso was rejected by 60% of the voters and Justice Joseph R. Grodin was voted down by 57%.

“I find it interesting that the responses of the judges somewhat parallel the votes of the citizens in the election,” said Justice Elwood Lui of the California Court of Appeal, who is president of the California Judges Assn. “I think that does reflect that the judiciary does, when it can, take the public’s interests in mind.”

Gerald F. Uelmen, a liberal legal scholar who defended the embattled justices during the election campaign, said he believes that the responses “reflect a lot of dissatisfaction of trial judges. . . . A lot of Bird’s opinions, and Grodin’s and Reynoso’s as well, did not reflect the traditional deference toward trial court discretion that you usually see in appellate decisions. . . . I think trial judges resent that.”

Uelmen is dean of the Santa Clara University School of Law.

Most Judges Canvassed

Phillip E. Johnson, a professor of law at Boalt Hall in Berkeley who strongly criticized Bird during the campaign, said the response of the judges is further evidence that “it was such a distortion to characterize the campaign (against the justices) as one that was brought about by people who were disrespectful of the legal system. . . . That in fact, Chief Justice Bird, at least, did not have the confidence of her fellow judges.”

The Times’ three-page questionnaire was mailed late last December to all sitting appellate, Superior, Municipal and Justice Court judges in the state. Court commissioners, who are appointed to act as judges, were also included. Responses were anonymous. Supreme Court justices were not polled.

Because only about 47% of the state’s judges returned the survey, their answers cannot be considered to represent the views of the entire California judiciary. Some judges may have felt it improper to answer the questionnaire. Others may have declined to respond because of strong sentiments either for or against the justices who were turned out of office.

However, the surveys that were returned offer a glimpse of what many California judges think about the unprecedented defeat at the polls of Bird, Reynoso and Grodin.

For example, 468 judges, or 64% of those who answered the question, said the defeat of the three Supreme Court justices will not hurt the California judiciary’s ability to make decisions without worrying about political reaction outside the courtroom. But 264 judges said it will.

More than 550 judges said their own judicial independence is not threatened by the ouster of Bird, Grodin and Reynoso. But 171--24% of those who answered--said it is.

Don’t Feel Threatened

Among the judges who said they do not feel threatened by the election results, the most commonly expressed view was that the three justices were rightly turned out of office because they did not follow the letter of the law. Asked why they did not feel threatened, 112 judges made remarks such as: “For those of us who follow the law and the Constitution, their defeat is not the least bit threatening, unless we, too, undertake to legislate.”

The judges were split on the question of whether the defeat of the three justices will in the long run increase the public’s willingness to turn other judges out of office. Of those who answered the question, 325, or 46%, said last year’s election will have that effect, while 379 said it will not.

Among the judges who agreed that Bird’s defeat will make it easier to oust others in the future, remarks such as these were typical: “Once done, it’s easier to do a second time,” “The California judiciary has finally been politicized as in New York, Chicago, etc.,” and “Some (members) of the public are now like sharks who have tasted blood and will want more.”

Those who disagreed made comments such as: “This election was an extraordinary event, unlikely to reoccur” and the election was “a long-brewing public revolt over an extreme situation.”

The judges who responded to the survey appeared to believe that the defeat of Bird, Reynoso and Grodin would have a greater effect on their colleagues than on themselves.

Many Disagree

For example, 344 judges--46% of those answering the question--said they either strongly or mildly agreed with one colleague’s assessment that, as a result of Bird’s defeat, “judges, consciously or subconsciously, will have to worry about whether their opinions are making powerful political or economic interests in this state happy or unhappy.”

Of those who replied, 274 judges said their colleagues will be more likely to behave like politicians in the future to keep their seats on the bench, while 447 said the election will make no difference.

But in response to another question, only 68 judges, or 9% of those responding, said the Supreme Court justices’ defeat would affect the way they make decisions in their own courtroom; 658 judges said it would not.

To the question, “Do you feel your independence is in any way threatened by the vote to remove Bird, Grodin and Reynoso?” one judge wrote, “Not mine. Others, yes!”

Appellate justices will be the ones most likely to feel the election’s effect, 221 judges said. Sixty-six said the most pressure will fall on Justice and Municipal Court judges, 63 said Superior Court judges will be most affected by the election, and 125 said all members of the judiciary will feel some heat. Only 236 judges said that none of their colleagues will be affected by the defeat of Bird, Grodin and Reynoso.

‘That’s Unfortunate’

“I think there is a significant indication that some judges . . . (believe) their colleagues will be influenced in the future by the threat of a judicial contest,” said Lui, who heads the judges’ association. “I feel that’s unfortunate.”

“What’s fascinating to me is how many of them . . . take the attitude that this is more likely to affect my colleagues than it is to affect me,” said Uelmen, the law school dean. “I think it takes a lot of introspection to be aware of the subtle ways in which it can affect.”

To a large extent, the judges’ responses appear to be related to their political views or to those of the governor who appointed them.

Of the judges who returned the questionnaires, 126 described their political orientation as liberal, 290 said it is “middle of the road” and 287 termed it conservative. Forty-two declined to characterize their views.

Only 24% of the judges who described themselves as liberal said they voted against any of the Supreme Court justices. The figure climbed to 59% among those who said they were political moderates and to 87% among self-described conservatives.

Brown’s Appointees

Judges appointed by former Gov. Edmund G. Brown Jr., a Democrat, were much less likely to have voted against any of the Supreme Court justices than those named to the bench by Brown’s predecessors or by his successor, Gov. George Deukmejian, a Republican.

Only 48% of the judges appointed between 1977 and 1982, all by Brown, said they voted against any of the justices. The figure rose to 66% for judges appointed since 1982, nearly all of whom were named by Deukmejian, and to 71% for judges appointed before 1977. Brown took office in January, 1975, and served until January, 1983. His immediate predecessor, Ronald Reagan, served from January, 1967, until January, 1975.

Three-quarters of the judges who described themselves as liberals said they believe that judges from now on will have to worry about whether their opinions make powerful political or economic interests happy or unhappy, while only 31% of the judges who called themselves conservatives shared that view.

Forty-five percent of the judges who said they are liberals think that their judicial independence is threatened by the defeat of the three Supreme Court justices, while only 14% of the judges who called themselves conservatives agreed.

Thirty-eight percent of the judges appointed by Brown between 1977 and 1982 said their judicial independence is threatened, but the figure dropped to 22% for judges appointed since 1982 and to 17% for judges appointed before 1977.

‘Matter of Grave Concern’

“Judicial independence is not just one simple concept,” said Johnson, the Boalt Hall professor. “It would be a matter of grave concern if judges felt they could not reverse a particular criminal case . . . (because) the crime was notorious. On the other hand, if a judge feels, ‘I no longer have the independence I thought I had to advance a set of social or political goals,’ then the loss of that independence may not be a bad thing,” Johnson said.

Equally striking was the difference of opinion over the wisdom of requiring appellate judges to stand for election. Among the 126 judges who called themselves liberals, only 30% believed that Supreme Court and appellate court justices should stand for election. On the other hand, 75% of the judges describing themselves as conservatives favored some type of election for seats on the higher courts.

A total of 423 judges, or 81% of those who answered the question, said they favor retaining the current system under which Supreme Court and appellate court justices must face the voters in single-candidate confirmation elections every seven years. At the same time, 453 judges, or 67% of those answering, favored limits on spending in judicial contests, both at the appellate and lower court levels.

More than a quarter of those who backed spending limits agreed with one judge who said, “Excessive spending leads to politicization and allegiance to special-interest groups.” Other judges said spending limits would ensure fairness.

The 227 judges who opposed limits on spending made comments such as: “Spending limits, which are easily and invariably evaded, foster illegality and hypocrisy,” and “There is no reason to treat judges’ election any differently than any other election.”

Death Penalty Factor

The state Supreme Court’s record on death penalty cases was named by 625 judges, or 86% of those who answered the question, as the primary reason for the defeat of Bird, Grodin and Reynoso. Only 99 said it was not the primary reason.

However, 526 judges said that other factors also played a role in the justices’ defeat.

The high court angered business interests with many of its decisions in personal injury and workers’ compensation cases, 122 judges said, and those interests used the death penalty issue as a “red-herring” in their campaign to oust Bird and her colleagues.

In addition, the public perceived an overall liberal bias, “a bias in favor of the rights of the accused, generally,” in the three justices, one judge wrote. That sentiment was echoed by 121 judges.

Times researcher Tracy Thomas contributed to this article. THE VIEW FROM THE BENCH Of 1,579 Justice, Municipal and Superior Court judges and appellate court justices surveyed by The Times, 745 returned questionnaires. Every judge did not answer every question. Here is a breakdown of some of the responses:

VOTING AGAINST THE COURT: 434 or 64% of judges who answered this question said they voted against one or more Supreme Court justices who were up for reconfirmation; 249 or 36% said they did not. A breakdown: BY POLITICAL VIEW

Liberal Moderate Conservative Yes 24% 59% 87% No 76% 41% 13%

BY LENGTH OF SERVICE

Appt’d Appt’d Before ‘82-87 ‘77-82 1977 Yes 66% 48% 71% No 34% 52% 29%

CONCERN WITH SPECIAL INTERESTS: 344 or 46% of those answering the question said they afreed with this statement: “Judges, consciously of subconsciously, (from now on) will have to worry about whether their opinions are making powerful political or economic interests in this state happy or unhappy”; 396 or 54% said they did not. BY POLITICAL VIEW

Liberal Moderate Conservative Agree 75% 49% 31% Disagree 25% 51% 69%

BY LENGTH OF SERVICE

Appt’d Appt’d Before ‘82-87 ‘77-82 1977 Agree 46% 62% 39% Disagree 54% 28% 61%

SHOULD JUSTICES FACE ELECTIONS: 437 or 61% of those answering this question siad they believe Supreme Court and appellate justices should be required to stand for election; 285 or 39% said they should not. BY POLITICAL VIEW

Liberal Moderate Conservative Yes 30% 60% 75% No 70% 40% 25%

BY LENGTH OF SERVICE

Appt’d Appt’d Before ‘82-87 ‘77-82 1977 Yes 64% 50% 64% No 36% 50% 36%

ANSWERING THE SURVEY: Judges who answered the survey were asked to describe their political views and length of service on the bench. This is a breakdown of their responses: BY POLITICAL VIEW

Liberal Moderate Conservative 126 290 287 18% 41% 41%

BY LENGTH OF SERVICE

Appt’d Appt’d Before ‘82-87 ‘77-82 1977 252 176 311 34% 24% 42%