The Lucas Court Is Suffocating : Worthy Cases Are Lost in Crush of Death-Penalty Reviews

With a full year under its belt, the performance of “the Lucas Court” suggests that the California Supreme Court under Chief Justice Malcolm Lucas is delivering exactly what the electorate ordered: accelerated processing of death-penalty cases. The price being paid for that priority has also become apparent: The court has little time for other important issues. Increasingly, the court is utilizing “depublication” of Court of Appeal opinions, rather than publication of its own opinions. If the high court is to continue to guide and shape California law and not become mainly a death-penalty review court, some major changes are called for.

During the 10 years preceding 1987, the California Supreme Court granted hearings in an average of 268 cases per year. About half were disposed of without opinions, and the court published an average of 137 opinions each year.

In the first year of the Lucas Court, hearings were granted in 204 cases, and only 80 opinions were published. Lawyers and judges are most alarmed by the sharp increase in depublication to the highest level in the court’s history.

Depublication is a procedure by which the high court simply erases an opinion of the Court of Appeal from the books, with no explanation. The result remains the same for the parties, but the case cannot be cited as precedent in future cases. On occasion, justices have suggested that depublication is a “less than ideal alternative” when the court lacks the time to hear the case itself and render its own opinion. The problem for lawyers and judges, however, is that they are left to guess at what the high court didn’t like about the offending opinion.

In 1984 Atty. Gen. John K. Van de Kamp publicly complained that the Bird Court was depublishing too many criminal opinions, and that 90% of the criminal opinions being depublished were favorable to the prosecution.

In its first year, the Lucas Court depublished 126 cases. Thus, the “less than ideal alternative” now exceeds the number of opinions that the court itself is rendering. The number of civil cases depublished increased 43% over the final year of the Bird Court. While depublication of criminal cases has declined, 57% of the criminal cases now depublished favor the defense.

The high court heard arguments in 75 death-penalty cases its first year, and issued opinions in 16. That’s the highest number of dispositions of death cases since 1985, when the Bird Court issued 23 opinions. Death-penalty cases are automatically appealed directly to the Supreme Court, which must review voluminous records and read ponderous briefs. Since 12 of the 16 opinions of the Lucas Court have been affirmances, the opinions tend to be longer, averaging 80 to 100 pages. Unlike reversals, in which the court may only need to decide one issue, affirmances require careful discussion of dozens of issues. In petitions for rehearings, lawyers are complaining that inaccuracies in the opinions reflect the haste with which they are being rendered.

Thus, the California Supreme Court faces a serious dilemma. To satisfy the electorate, it must become chiefly a death-penalty review court. That is not a role relished by the justices, and the lawyers and judges who look to the court as “chief weaver” of the fabric of case law are beginning to express disappointment. From their perspective, deciding death-penalty cases should be a relatively minor part of the court’s place in our legal structure.

A blue-ribbon commission headed by retired Justice Frank Richardson recently presented 17 recommendations to ease the load on the high court, including shifting State Bar discipline and Public Utility Commission cases to lower courts. Only one of its recommendations deals directly with death-penalty appeals, suggesting that a special pool of experienced lawyers be hired to coordinate the capital cases for the justices. The heaviest burdens of these cases cannot, and should not, be delegated to staff attorneys, however. The grim reality is that new death cases are arriving at a faster rate than the court can dispose of old ones. It is unrealistic to anticipate that the court could ever surpass the “optimum” number of 35 death-appeal dispositions per year that Justice Edward Panelli has suggested. Even at that rate, it will take 16 years to clear the backlog, assuming prosecutors don’t step up the pace of filing death-penalty charges.

One alternative is to repeal the requirement that death-penalty cases automatically go to the Supreme Court. Why not have the various divisions of the Court of Appeal decide them, like other criminal cases? A look at how other criminal cases are decided by the Court of Appeal, however, reveals great diversity in reversal rates. Imposition of the death penalty could take on an even closer resemblance to a game of roulette. Supreme Court review ensures the application of a consistent standard to every case.

Similar suggestions to shift other aspects of the court’s workload to lower courts have gained little support. The traditional role of the court as final arbiter of all developing case law is firmly embedded, even though the funnel that feeds cases to the court has grown five times as large in just the past 25 years.

Can the court itself be expanded? Such expansion would accomplish little if every justice continued to participate in every case. A proposal by Justice Stanley Mosk might point the way out of the dilemma, however. In a Los Angeles Times article four years ago, Mosk suggested expanding the court to 11 justices, with separate panels to decide civil and criminal cases. Justices would have been permanently assigned to one panel or the other, however, creating a risk of the two “Supreme Courts” contradicting each other on issues that arise in both civil and criminal cases.

I believe that a variant of Mosk’s proposal could provide the answer. The court should be expanded to 12 justices, five of whom would be randomly selected for assignment to a “death-penalty panel” for two-year terms. The death-penalty panel would devote itself exclusively to automatic death-penalty appeals and related habeas corpus petitions. Seven justices would be left to handle the remaining workload, untrammeled by death-penalty cases.

While there will certainly be resistance to increasing the size of the court, a division of the workload offers many advantages over a shift of the workload out of the court. Expanding the court could also obviate any constitutional problems of applying the change retroactively to the current backlog. While justices will not welcome their assignment to a “death-penalty” panel, a two-year stint every three or four years certainly beats the current frustration of the entire court functioning as a death-penalty review court with little time to resolve other significant legal issues. That frustration may make “death-penalty burnout” a recurring phenomenon, as justices welcome premature retirement.

The 1986 elections presented a clear mandate to seriously move death-penalty appeals. During its first year, the Lucas Court has demonstrated its commitment to meet that mandate, even at the cost of relinquishing the court’s role as chief arbiter of all the law of California. If that role is to be preserved, some structural alterations will be essential.