Cites Fight Over Bird : Kaus Urges Dropping of Judicial Elections

Gov. George Deukmejian’s intervention in last fall’s bitterly fought campaign over the state Supreme Court has helped change the way California selects members of the judiciary for the “foreseeable future,” former Justice Otto M. Kaus said Wednesday.

Deukmejian’s opposition to then-Chief Justice Rose Elizabeth Bird and two other court members ousted by the voters marked a historic shift in which the electorate may begin to focus more on the governor’s views of the judges and less on the judges themselves, he said.

Kaus urged that California consider abandoning its system of judicial retention elections. And he sharply disagreed with those observers--including Chief Justice Malcolm M. Lucas--who have seen the voter rebellion last November as an aberration.

sh ‘Being Very Naive’

“Anyone who thinks that the Rose Bird phenomenon is what caused the upheaval in 1986 and believes it is not going to happen again is being very naive,” Kaus said in a panel discussion at the annual meeting of the American Bar Assn. “We are in for contested elections in the appellate courts for the foreseeable future.”

A contrasting view was offered by Gideon Kanner, a Loyola University law professor who said that activist judges who use the law to impose their own social and political views cannot complain when their opponents fight back.

“The highest degree of independence and respect is achieved by a judiciary that engages in the highest degree of self-restraint and political impartiality,” Kanner said.

The future of the judiciary in California will depend “to a large extent” on its willingness to show self-restraint in decision-making, he said.

Another panelist, Santa Clara University Law School Dean Gerald F. Uelman, joined Kaus in predicting that more costly and heated judicial campaigns will emerge in the future. Five of the seven state Supreme Court justices will be on the ballot for a “yes” or “no” vote in 1990, he noted.

Uelman pointed out that while only three justices have been defeated since California in 1934 adopted nonpartisan retention elections for members of the state Supreme Court and Court of App1700883500years. Before 1982, 93% of these judges were confirmed by a vote of 80% or more; since then only 26% of the judges have drawn that level of support, he said.

sh $11 Million Spent

Meanwhile, increasingly expensive campaigns are being waged against high court judges not only here but in other states, he said. In California, $7 million was spent by opponents of Bird and Justices Cruz Reynoso and Joseph R. Grodin and $4 million in their support, according to Uelman.

Uelman recalled the oft-quoted remark by the late state Treasurer Jesse Unruh that “money is the mother’s milk of politics” and added:

“We are going to see more and more Supreme Court justices among the suckling.”

A recent proposal to abandon judicial elections and instead subject the justices to confirmation by the state Senate has stalled in the Legislature. Much of the opposition to the change has been based, at least in part, on a belief that the volatile campaign stemmed primarily from the controversy over Bird and is not likely to recur. Lucas, in an interview last spring, likened the 1986 campaign to “a 100-year flood--a very unusual circumstance” and predicted a “tranquil period” for the court.

Kaus, a widely respected jurist who retired from the court in 1985, told his audience of lawyers and judges Wednesday that he was “not here to accuse anybody.” But he said Deukmejian’s stated opposition to Bird and criticism of the court’s reluctance to uphold death sentences had introduced a new factor “that can be vital in the future in a state like California.”

“Just think what that means,” he said. “The focus of the election is shifted away from the merits or demerits of the justices who are up for retention and is focused on the politics, philosophies and ideology of the governor who will nominate the replacements of those justices.”

Another phenomenon of “great significance,” he said, was a last-minute campaign waged last fall by some Republicans against five Southern California appellate justices who had been appointed by Democratic Gov. Edmund G. Brown Jr. All five justices were retained by the voters, but by smaller margins than expected.

‘A Great Effect’

“It has thus been proven that even a very slight effort against sitting Court of Appeal justices can have a great effect,” Kaus said.

In future elections, he said, gubernatorial candidates may be basing their own campaigns in part on court issues. Meanwhile, he said, justices facing the voters will be worrying about organizing campaigns, raising money and whether their decision-making is being influenced--consciously or unconsciously--by the potential effect of their rulings on the electorate.

“We have come to a bad pass in California--and anything that can happen here can happen elsewhere,” Kaus said. “We should think seriously whether we should do away with judicial retention elections.”