Dropped Cases Indicate Shift to Right by Court

In little-noticed actions, the state Supreme Court has been dropping from its crowded docket a wide range of cases that previously had been accepted for review under former Chief Justice Rose Elizabeth Bird.

The new and more conservative court, with appointees of Gov. George Deukmejian now in the majority, in recent weeks has dismissed 14 cases the old court had agreed to decide.

While the new court has yet to issue a major opinion since three new justices took office in March, it has since voted to reconsider six important criminal rulings that had been made by the Bird court.

Changes Expected

Its dismissals of the cases that had been granted review by the old court is lending further indication that the new court, led by Chief Justice Malcolm M. Lucas, has indeed begun a widely expected philosophical shift to the right.

The abandoned cases involved an array of issues, many with only limited impact. But in two cases, the justices dismissed potentially far-reaching tests of free-speech guarantees, and in doing so reinstated lower court rulings that sharply limited the rights of political activists.

And in several instances, the losing parties were civil libertarians, environmentalists, criminal defendants and union members--all of whom used to win frequent victories from a liberal-dominated court before Bird and two other justices were rejected by the voters in November.

The most recent such defeat came in an order released last week in which the court dismissed a challenge to a Fresno ordinance that permitted commercial advertising but prohibited political ads inside municipal buses.

The high court’s action reinstated a ruling by the state Court of Appeal upholding the city’s refusal to permit an anti-draft group to place an ad headlined “Think Before You Register” in transit vehicles.

The justices’ summary dismissal of the case stunned the lawyers contesting the ordinance, who, while realizing that they were facing a more conservative court, still thought they had a fair chance to prevail, based on court precedents in similar disputes.

“We were very surprised and very disappointed,” said Margaret C. Crosby of the American Civil Liberties Union of Northern California. “I still feel it’s premature for any global comment on the new court, but it would certainly be a tragedy if civil liberties became a victim of the election.”

Last month, the court had dismissed another free-speech case involving attempts by activists to stage protests in a privately owned shopping center in San Diego. The justices left intact a preliminary injunction barring an anti-war group from performing a play at the mall attacking U.S. foreign policy and depicting bombings in El Salvador.

See Issue as Insignificant

In the view of one of the protesters’ attorneys, the justices’ action may have been an indication the new court, unlike the old court, saw the issue as relatively insignificant.

“One of the important questions for a court is in what cases is it going to exercise its discretion to grant review,” said Gregory Marshall of the ACLU of San Diego. “And it’s significant when a court decides not to hear a particular case. . . . It seems to be a new day at the state Supreme Court.”

Other lawyers see the dismissals as not particularly surprising in view of the court’s new and more conservative makeup and its heavy backlog of cases, which has been aggravated in a time-consuming process of transition as three new justices--John A. Arguelles, David N. Eagleson and Marcus M. Kaufman--embark on their formidable new jobs.

Lucas himself told reporters in March that the court would be reviewing the scores of pending cases accepted for review under Bird to see which ones could be dropped.

‘Might Make Some Sense’

If review had been granted with the votes of three justices who had since left the seven-member court, “then it might make some sense” to re-examine such cases, the chief justice said.

Most of the dismissals thus far have been ordered under a new court rule, adopted in 1984, allowing the justices to dismiss a case when they conclude that a review had been “improvidently granted.”

As might be expected, the dismissals the new court has ordered have been readily welcomed by lawyers for businesses, governmental agencies, law enforcement and other groups that in the past were more likely to have been on the losing side before the Bird court.

Edwin A. Oeser, the assistant city attorney representing Fresno in the bus advertising case, conceded that while it might have been preferable for the justices themselves to uphold the transit system ban on political advertising, their reinstatement of an appellate ruling approving the ordinance still brought a successful conclusion to nearly four years of litigation.

Useful as Precedent

“The Court of Appeal opinion now is good law that can be cited throughout the state,” he said. “It upheld our position that the inside of a bus is not a ‘public forum’ for free-speech purposes and that there was also a right to privacy that protects bus patrons.”

“I would have been much less optimistic,” Oeser added, “had this case been heard before the Bird court.”

Besides the two free-speech disputes, the justices, among other dismissals they have ordered, have reinstated lower court rulings that:

- Barred the state Agricultural Relations Board from taking action against an Arizona grower accused of unfairly refusing to hire workers who came to that state after supporting a United Farm Workers union work stoppage in Salinas.

- Refused to depart from previous court decisions and allow an injured auto passenger to collect benefits from two separate but similar insurance policies.

- Held that the environmental group Amigos de Bolsa Chica had waited too long to bring suit under the state’s “public trust” doctrine to try to block the planned development of 1,700 acres of wetlands near Huntington Beach.

- Found that a trial judge may not grant immunity from prosecution to a defense witness without consent of the prosecution.

- Prevented a mother seeking custody of a child from invoking the doctor-patient privilege of confidentiality to bar the release of her medical and psychiatric records to the father who also sought custody and accused the mother of emotional instability and of being an unfit parent.