Conservatives Eager to Test Lucas Court

For nearly a decade, legal groups representing business, law enforcement and property owners frequently found themselves the losers in major decisions issued by the state Supreme Court under Chief Justice Rose Elizabeth Bird.

But now, with a new court in power, conservative legal forces are on the offensive--buoyed with optimism and determined to overturn or modify rulings they believe were decided wrongly by the liberal-dominated Bird court.

These groups see the new court under Chief Justice Malcolm M. Lucas as likely to be far more receptive to their contentions, and they are searching for new cases to use to challenge past decisions.

Among other things, they hope to ask the Lucas court to reconsider rulings that gave employees greater ability to bring wrongful-discharge suits, gave political protesters access to privately owned shopping centers, expanded state control over river- and lake-front residential property, curbed the power of the grand jury in criminal cases and limited the prosecution’s access to evidence obtained by the defense.

“We feel now there is a window of opportunity,” said Edward J. Connor Jr., director of a new project by the Pacific Legal Foundation aimed at overturning decisions that it believes stretched the law to achieve social goals.

“We feel the new court will make a real effort to apply legal principle,” Connor said. “The justices will rule on what the law is, rather than what they think the law should be.”

Lawyers for the Criminal Justice Legal Foundation, a Sacramento group supporting law enforcement and victims’ rights, also see a new era emerging at the court.

“We think the new court is going to be much more open to upholding victims’ rights, public rights and society’s rights,” said Michael Rushford, the foundation’s president. “With the Bird court, those rights didn’t exist.”

The hopes of conservatives and law enforcement groups grew further last spring when the justices, at the urging of state Atty. Gen. John K. Van de Kamp, agreed to reconsider six criminal law rulings issued in the final days of the Bird court. Among others, the new court is re-examining a decision that ordered the release on parole of Gregory Ulas Powell, the “Onion Field” killer.

“The very fact that the court granted those rehearings is indicative it may want to reconsider other issues,” said Los Angeles County Deputy Dist. Atty. Harry B. Sondheim, chair of the appellate committee of the California District Attorneys Assn.

But the new optimism of conservatives may be premature in the view of lawyers for some liberal groups that were often winners before the Bird court.

They warn against drawing too many conclusions from a new court that has issued relatively few decisions since three new justices appointed by Gov. George Deukmejian took office in March. And further, they say, any court must be expected to generally adhere to precedent and overturn past decisions only with great caution.

“I suspect these conservative groups may have greater success with the current court than the one before,” said Paul Hoffman, legal director of the American Civil Liberties Union of Southern California. “Certainly, that’s what Gov. Deukmejian had in mind when he appointed the new justices.

“But it’s really too early to tell,” he said. “We have to wait and see what this court does in major cases and how each of the judges reacts. They may just surprise us.”

Conservatives have found some encouragement in a speech that Lucas made at a Pacific Legal Foundation luncheon meeting in March, shortly after he was sworn in as the new chief justice.

Briefs Welcomed

Lucas told how he had welcomed briefs filed by the foundation when he was sitting as a member of the Bird court, often dissenting on major issues.

He warned his audience not to assume that the new court will “readily overturn or re-examine” past rulings. Those decisions will remain intact until someone brings an appeal raising an issue worthy of reconsideration, he said.

“I suggest therefore that your foundation will continue to play an important role and perhaps an even more useful and appreciated role than ever before in the development and reshaping of the civil and criminal law,” he said.

The Sacramento-based Pacific Legal Foundation, founded 14 years ago with the aim of protecting private property rights, has a $3.2-million annual budget provided by corporations, other foundations and 19,000 individual donors. Recently it launched an $800,000 fund drive to support a Judicial Responsibility Project, a newly developing litigation and public education program.

The foundation either represents an individual or organization directly in lawsuits or files “friend of the court” briefs in their support. The courts generally welcome such participation as aiding a more thorough examination of the facts and issues in a case--and a well-documented, well-argued brief can prove convincing, legal experts agree.

Among others, the group has targeted past state court rulings that refused to allow landlords covered by rent control laws to go out of business, held that political groups were entitled to circulate petitions in privately owned shopping centers and expanded the “public trust” doctrine to give the state power to open for recreational use privately held land fronting navigable lakes and streams.

The California District Attorneys Assn. hopes to find a case in which the justices could reconsider a 1978 decision by the Bird court holding that defendants indicted by a grand jury are still entitled to a preliminary hearing in court.

Generally, prosecutors exercise greater control over grand jury proceedings where, among other things, there is no opportunity for a defense attorney to cross-examine witnesses. Prosecutors contend that preliminary hearings after indictments are duplicative and frequently costly.

Death Penalty Finding

The district attorneys and the Criminal Justice Legal Foundation, a 5-year-old group with an annual budget of $300,000, have joined the attorney general in asking the state Supreme Court to overturn rulings requiring juries, before returning the death penalty, to specifically find that the defendant intended to kill his victim. More than two dozen capital cases could be affected if the court modifies or overturns those rulings.

The foundation also is filing a brief in the Powell “Onion Field” case, advancing the novel argument that Powell, whose death sentence was overturned in 1972, should have been resentenced to life without parole.

Should the justices accept such a contention, other once-condemned killers who were resentenced to life with eligibility for parole--such as Charles Manson or Sirhan Sirhan--also would be barred from seeking release, foundation attorneys say.

In business litigation, the California Manufacturers Assn. is anticipating that the new court will be more receptive to its arguments.

The association, counsel Michael J. Breining noted, has joined with other employers to ask that the justices limit the ability of fired employees to bring wrongful-discharge suits.

The Bird court in 1980 created a major exception to the long-held doctrine that, unless they are covered by collective bargaining agreements or Civil Service laws, employees are subject to termination “at will.”

The 1980 ruling, holding that a worker could sue if fired for refusing to participate in an illegal price-fixing scheme, has encouraged lower courts to issue several decisions widening the ability of employees to bring suit. The issue is now before the high court again in a case in which a Los Angeles business executive claims he was dismissed for reporting to his superiors that he had heard that his new boss had been investigated for embezzlement.