Justice Says Court Will Be Hesitant to Void Bird Rulings

A member of the state Supreme Court said Saturday the justices will be “quite reluctant” to overturn previous rulings, noting that the court already has left intact several controversial decisions issued under former Chief Justice Rose Elizabeth Bird.

Justice Marcus M. Kaufman, widely regarded as the most conservative member of the court, said that the need for stability in the law requires courts to adhere to judicial precedents unless there is strong reason to reverse them.

In a rare public discussion of court actions, Kaufman observed that while it may well not have agreed with the decisions, the new court had not “reached out” to overturn Bird court rulings that assured state-funded abortions for the poor, curbed the power of grand juries in criminal cases and struck down a key provision of the California death-penalty law.

No Preset ‘Agenda’

The justice, one of five appointees of Gov. George Deukmejian now on the seven-member court, spoke to a meeting of journalists and judges sponsored by the California Judges Assn. His remarks, most made in a question-and-answer session after a brief speech, appeared directly aimed at speculation that the new court would move quickly to erase many of the precedents set by the liberal-dominated Bird court.

Kaufman repeatedly rejected the suggestion that the court’s new members have a “pre-determined agenda” for judicial change. And he vigorously denounced “judicial activism” and the unjustified reversal of precedent as “the worst possible scenario for the law and the courts.”

“I hope you will find that the California Supreme Court, as now constituted, will put an end to this roundelay by exercising the utmost restraint in overruling earlier decisions,” said Kaufman, who previously served 18 years on the state Court of Appeal. “I sense on our court a great reluctance . . . to overturn precedent willy-nilly.”

Since the defeat of Bird and two other justices in the bitter 1986 general election, prosecutors and conservative legal groups have urged the court to reverse a wide variety of precedents established under the previous court.

But while the new court has ruled to limit the scope of some Bird court rulings, as yet it has overturned only one major decision: a 1983 ruling requiring juries in capital cases to find that defendants intended to kill their victims during commission of a felony. The ruling had jeopardized dozens of death verdicts in pending cases before the court, now under Chief Justice Malcolm M. Lucas, reversed it in October.

Kaufman, appearing with noted legal scholar Bernard E. Witkin at the UC Berkeley Boalt Hall law school, acknowledged that courts could and should overturn some precedents that were wrongly decided or had become impractical or in conflict with public policy.

He noted that both “liberal” and “conservative” courts overruled precedent with some frequency--with the state high court doing so 16 times in major cases in Bird’s nine-year tenure.

Kaufman assailed sudden judicial shifts as “terrible for the law,” adding that the best way to “put a stop to that” is for a court to “drag its feet” when asked to reverse a previous ruling.

Refusal to Overturn

The justice pointed to three Bird court rulings that the new court has left in place--while implying or openly acknowledging that the justices had misgivings about the wisdom of the decisions:

- The court refused a request by the Deukmejian Administration to overturn a 1981 decision establishing a state constitutional right to abortion under the Medi-Cal program. The refusal to hear the case, Kaufman said, may have been based on “procedural” considerations or the court’s heavy workload, rather than agreement with the decision. “But we didn’t reach out and grab it . . . as if we had an agenda,” he said.

- The court rejected attempts by prosecutors to reverse a 1978 ruling that sharply limited the powers of grand juries in criminal cases. “If I were a gambling man, I’d venture a bet that a majority on this court does not agree with the (1978) decision,” Kaufman said. “But there it sits.”

- The court let stand a 1984 ruling striking down a requirement of the 1978 death-penalty initiative that juries be told a governor can commute a sentence of life without parole. He said he would “not be surprised” if the court majority opposed a strict adherence to the 1984 decision, but noted that its effect was limited because the instruction no longer is given to jurors.