27 Cases Await Review by New State Supreme Court Majority

Motorists traveling north on El Camino Real in nearby Burlingame on the night of Nov. 16, 1984, were met with a flashing amber arrow directing them to slow down into a single lane.

Every fifth car was stopped by a contingent of police officers in reflectorized vests. They looked quickly for open beverage containers and inspected the drivers for bloodshot eyes, slurred speech or other signs of drunkenness.

The vast majority of the 233 people who were pulled over were allowed to proceed after cursory examinations that averaged less than 30 seconds. And none of the 10 who were held about six minutes each for field sobriety tests was arrested.

Nonetheless, the action sparked a legal challenge that has now come before the California Supreme Court in its first review of the legality of a law enforcement tactic used increasingly nationwide to combat drunk driving.

The sobriety checkpoint dispute is one of 27 cases that will be argued this week in Los Angeles as three new justices appointed by Gov. George Deukmejian take the bench for the first time on what is widely expected to be a more conservative court.

‘Reasonable Suspicion’

Courts in most of the other states that have ruled on the issue have upheld the legality of systematic and carefully regulated sobriety checkpoints. But the lawyers challenging roadblocks in California say they are unconstitutional. No motorist, they say, should be stopped unless police first have “reasonable suspicion” that he is intoxicated.

Interestingly, review was granted during the tenure of former Chief Justice Rose Elizabeth Bird by a court dominated by liberals whose decisions established far-ranging protections against what it viewed as unreasonable searches. But with the defeat of Bird and Justices Cruz Reynoso and Joseph R. Grodin in the Nov. 4 election, the court appears ready to shift markedly to the right.

Three conservatives--Justices John A. Arguelles, David N. Eagleson and Marcus M. Kaufman--have replaced three liberals, establishing Deukmejian court appointees in the majority. The decisions the new court eventually issues in the roadblock and other cases to be argued this week may be far different from what might have come from the Bird court.

The attorney defending the legality of the roadblocks acknowledges that the odds may have shifted to law enforcement’s favor with the change in the court.

“I’m somewhat more hopeful than I was a year ago,” said Deputy Atty. Gen. Ronald E. Niver. “I expect the court to listen to our arguments and give them careful consideration. I can’t ask any more than that.”

But the American Civil Liberties Union lawyer who is representing the group of taxpayers challenging the roadblocks says he is not discouraged by the prospect of facing a more conservative court.

“The new justices took an oath to support the law and the Constitution and I expect they will do so,” said Amitai Schwartz of San Francisco. “I will presume that these justices were not appointed for the purpose of making result-oriented decisions.”

Other pivotal cases set for oral argument this week involve:

THE DEATH PENALTY

With a court now likely to be more sympathetic to the views of prosecutors, state Atty. Gen. John K. Van de Kamp is making a bid to convince the justices to reverse Bird court rulings that could eventually force retrials of scores of capital cases.

Among other issues, the court will be considering whether to reverse a 1983 decision requiring that before a defendant can be sentenced to death, the jury must specifically find that he intended to kill his victim.

A brief filed by Deputy Atty. Gen. Ward A. Campbell says that the 1983 precedent has resulted in the court reversing 14 death sentences--with another 43 pending death penalties facing reversal unless the justices overturn the decision.

Chief Justice Malcolm M. Lucas, Deukmejian’s choice to succeed Bird, in previous dissents has called on the court to abandon the 1983 ruling, saying it is responsible for numerous death penalty reversals where it is readily clear from the circumstances that the defendants intended to kill their victims.

Also under review is the validity of a judge’s instruction that jurors should not be swayed by “mere sympathy” or other emotions. The Bird court said in 1983 that such an instruction was unfair to a defendant--but the U.S. Supreme Court ruled in January in another California case that it was permissible under the federal Constitution.

Defense attorneys now are asking the justices to hold the instruction improper under the state Constitution, while the state attorney general’s office argues that they should follow the lead of the federal high court. Up to 30 pending capital cases could be affected by the ruling.

RIGHTS OF

UNMARRIED PEOPLE

In a test of a novel legal doctrine, the court is being asked to rule that a man whose female co-habitant was killed in an auto accident can sue for negligent infliction of emotional distress and loss of companionship, just as if the couple had been married.

Appeals courts in California have been divided on whether to give unmarried people the same rights the law gives to married people to bring suit in similar circumstances.

MANDATORY

AUTO INSURANCE

In 1985, the Legislature enacted a law requiring all California motorists to carry auto insurance--or face fines of up to $250 and loss of their driver’s license.

But the statute was promptly challenged in court and is not being enforced, pending a ruling by the justices. A suit brought on behalf of a group of Los Angeles residents argues that the law violates guarantees of due process because many companies make insurance prohibitively expensive or even refuse to sell it to people who live in low-income areas.

WRONGFUL DISCHARGE

The court ruled in 1980 that an employee can sue for damages if he was fired for refusing to participate in an illegal price-fixing scheme. Since then, more suits have been filed seeking other exceptions to the long-established legal doctrine allowing employers to fire workers “at will.”

A widely watched case now before the justices tests whether an employer can be held liable for dismissing an employee in violation of an implied agreement that he would not be fired without good cause.

In the sobriety checkpoints case, the challenge to the tactic was filed after the City of Burlingame established the first of a series of roadblocks that were to be set up statewide.

While conceding the seriousness of the problem--each year about 25,000 Americans are killed in alcohol-related auto accidents--the ACLU says the program violates constitutional protections against unreasonable searches.

Warning on ‘Dragnets’

If upheld, the ACLU says, drunk driving roadblocks could be used as a precedent for other kinds of indiscriminate inspections of citizens, motorists or property. Police “dragnets” could become commonplace any time a serious crime was committed in the community, it warns.

But in December, 1985, a state Court of Appeal here upheld the legality of sobriety checkpoints, concluding that the intrusions on motorists were justified by the magnitude of the problem and the potential for deterrence.

A few months later, the state Supreme Court agreed to review the appellate ruling, with Bird, Reynoso and Grodin joining Justices Stanley Mosk and Allen E. Broussard in voting to hear the case. Then another state appellate panel in Santa Ana found roadblocks unconstitutional and the justices decided last December to bar their use throughout California pending a ruling in the Burlingame case.

In its defense of roadblocks, the attorney general’s office argues that the practice, employed with advance publicity, increases the public’s awareness of the problem and deters people from driving while intoxicated. “If a person knows he is going to be faced with a roadblock, he’s going to find alternatives to driving,” state prosecutor Niver said.

A Decline in Accidents

Data collected by the California Highway Patrol from 17 checkpoints set up in December, 1984, showed that there were proportionately more drunk driving arrests--and fewer alcohol-related accidents--in areas where the roadblocks were used.

Officers at checkpoints saw a number of intoxicated passengers being transported by sober drivers, taxi companies reported more calls for service and bar operators noted a decline in business while the roadblocks were in operation, the state says.

Los Angeles County Dist. Atty. Ira Reiner, in a “friend of the court” brief filed on behalf of the California District Attorneys Assn., joined in defense of sobriety checkpoints, noting that at least 12 of 18 courts in other states that have considered the question have upheld roadblocks as serving a valid public purpose with only minimal intrusions. While the U.S. Supreme Court has not ruled specifically on sobriety checkpoints, it has upheld roadblocks employed to detect illegal aliens, Reiner’s brief says.

On the other side, the ACLU argues that any momentary gain from the use of roadblocks is a “large price to pay in loss of freedom and liberty” for the countless motorists who will be detained without any indication of drunk driving. Further, the group contends that in the long run, roadblocks may provide no greater deterrent to drunk driving than other police tactics, such as roving patrols for erratic motorists.

The ACLU points out, for example, that last year the Los Angeles police decided to abandon weekly drunk driving checkpoints in the San Fernando Valley after alcohol-related traffic deaths in the area actually increased over the year before. Police blamed the demise of the program on a lack of publicity.

“We’re particularly afraid that upholding drunk driving roadblocks will just open the door to the same kind of dragnets for any serious crime,” Schwartz said. “We could have people being stopped as they leave a public establishment or all cars being stopped any time there’s a crime in a neighborhood. . . . It’s an exception to the Fourth Amendment that we don’t want.”