Now in Minority on State Court : Broussard: Liberal Justice Maintains Steady Course

In his first five years on the state Supreme Court, Justice Allen E. Broussard was a key member of a dominant liberal bloc, writing or joining in the vast majority of the often controversial and far-reaching decisions issued under Chief Justice Rose Elizabeth Bird.

But with the defeat of Bird and two others in the fall of 1986 election, Broussard now repeatedly finds himself in the minority on a new and more conservative court--and is playing a vastly changed role as its most frequent dissenter.

In 135 rulings by the court under Chief Justice Malcolm M. Lucas, Broussard dissented, in whole or in part, 29 times--12 times in lone dissents. In the 31 cases in which the justices upheld a death sentence, he dissented 14 times.

Broussard was in the minority when the court expanded police authority to question suspected truants, widened the use of improperly obtained statements against defendants at trial, upheld the legality of drunk-driving roadblocks and barred the state’s civil rights agency from imposing punitive damages for discrimination in employment.

The justice’s refusal to bend with the winds of change comes as little surprise to close observers.

“Broussard calls them as he sees them,” said Ephraim Margolin of San Francisco, president of the Criminal Trial Lawyers Assn. of Northern California. “He’s been unwilling in any way to accommodate the public opinion polls. . . . He’s straight as a ramrod.”

Ironically, the 59-year old liberal jurist seems to be in a role similar to one played by retired Justice Frank K. Richardson, a conservative who dissented frequently under Bird until he left the court in 1983.

Richardson acknowledged last week that there is a “rough analogy” between Broussard’s current position and his own on the previous court. Both, Richardson noted, sought in their dissents to force the majority to face the tough questions in a case and to lay the groundwork for a change in the law by another court at another time.

Called Open-Minded, Fair

“Justice Broussard is very much a consensus-oriented judge--open-minded and fair,” Richardson said. “He’s well within his rights and his obligation to dissent when he feels there is an issue that needs airing. . . . A dissent can be a wholesome thing. It can provide balance to the court’s opinion.”

Of course, Broussard, an appointee of Democratic Gov. Edmund G. Brown Jr., is by no means always in a lonely minority on the court. For example, he voted with the majority in 17 decisions affirming a death sentence and joined in some important civil rulings as well.

Justice Stanley Mosk, a generally liberal jurist known for his independence, dissented 23 times as a member of the Lucas court. But Mosk, the court’s senior member, also has written some of the new court’s most significant majority opinions--including a wide-reaching reversal of a 1983 Broussard decision on the death penalty.

Authorities note also that during its recent transitional period, a substantial portion of the new court’s decisions have involved the death penalty and other issues in criminal law that underscore differences between liberals and conservatives.

Over a longer period of time, Broussard may tend to vote less in the minority as the court rules in other areas of the law that are less receptive to philosophical labels, experts say.

“It’s important to remember that in the vast areas of commercial, family, tort and other civil law, Broussard may not be a lone dissenter at all,” said Bernard E. Witkin, a Berkeley legal author and authority on the court.

“In the long haul, the court must deal with many everyday problems, such as civil liability, and these are the kinds of matters that call for legal judgments where ‘liberal’ and ‘conservative’ divisions may not appear,” Witkin said.

Popular With Colleagues

From all indications, Broussard remains a personally popular figure on the court and gets along well with the other justices, whatever their differences on legal issues. Broussard declined to be interviewed for this article.

But those who know him say the abrupt change in the court’s alignment has not been easy for a man who likes to reach consensus and deeply appreciates the human dimensions of cases that go before the justices, particularly in civil rights and criminal law.

“His strength as a person enables him to deal with what is a vastly changed role,” said James P. Steyer of San Francisco, a former law clerk for Broussard who stays in close touch with the justice.

“But at times I think it must be a frustrating and lonely experience, particularly for a guy who frequently brought the court together in the old days,” Steyer said. “It’s tough going, even with all his professional and personal skills, when his judicial philosophy is really out there alone.”

Broussard was sworn into office in 1981 after serving as a Municipal and Superior Court judge in Alameda County for 17 years. A graduate of the UC Berkeley Boalt Hall Law School and a member of the Law Review, he became only the second black justice in the state Supreme Court’s history.

Known as a judge who tempers compassion with the sobering, real-life experience he gained from the trial bench, Broussard wrote some of the most significant decisions issued in the Bird era.

In 1983, he was the author of a landmark decision holding that under the so-called “public trust” doctrine, authorities must consider environmental and recreational values in allocating the state’s scarce water resources.

Intent to Murder

The same year, Broussard wrote the decision requiring that before a defendant in a felony murder case could receive the death penalty, a jury must find that he intended to kill his victim. The ruling had jeopardized dozens of pending capital cases until it was reversed last fall by the new court.

Two years later, he was the author of the court’s lead opinion when the justices set aside a series of previous decisions and held that public employees in California have the right to strike.

In another far-reaching ruling, Broussard wrote the opinion holding that landlords may be held strictly liable for a defect on the premises that injures a tenant, even if the landlords are unaware of the hazard.

And, in one of the last decisions issued by the court under Bird, Broussard wrote the 4-3 ruling in December, 1986, ordering the release on parole of Gregory Ulas Powell, known as the Onion Field killer. That decision was overturned in June by the new court, with Broussard dissenting.

Although one of the court’s most liberal members, Broussard was able to avoid the voter rebellion that led to the unprecedented defeat of three justices in 1986 and demise of the Bird court.

Having been confirmed to a full 12-year term in the 1982 election, Broussard was not on the ballot when Bird and Justices Cruz Reynoso and Joseph R. Grodin were targeted for defeat by Gov. George Deukmejian and other critics of the liberal court in 1986.

Now, Broussard and, to a lesser extent, Mosk make up the liberal wing of the new conservative-dominated court, five of whose members were appointed by Deukmejian. Both justices are vigorous questioners of attorneys during argument before the court--and have joined together in dissent 14 times in cases decided under Lucas.

Major Civil Decisions

Broussard has joined the majority in a number of important civil rulings--including unanimous decisions upholding mandatory auto insurance, limiting the liability of drug companies from suits by consumers and expanding federal water rights within California--as well as a 4-3 ruling in which the court limited the immediate effect of the “deep pockets” liability-reform initiative to cases arising after its passage.

But in other decisions--particularly those involving criminal law--Broussard has been a forceful dissenter:

- When the court held 6 to 1 that juries in felony murder cases could vote the death penalty without a finding of intent to kill, Broussard suggested that the justices, in overturning a Bird court precedent, were yielding to partisan pressure.

“Periodically, when the political winds gust in a new direction, it becomes necessary to remind all concerned of the virtues of a steady course,” he wrote in a 30-page dissent. Courts should not overturn precedent simply because “changes in personnel” enable them to do so, he said.

- When the justices upheld the legality of sobriety checkpoints, Broussard accused the majority of “stretching” the Constitution and allowing hundreds of innocent motorists to be detained for the sake of apprehending only a few drunk drivers.

“It is one thing to invade personal privacy in order to apprehend dangerous criminals, but when the purported object is deterrence, such mass detentions are a very high price to pay when the effectiveness of such detentions is questionable at best,” he wrote.

- When the court affirmed the right of power of police to stop and question suspected truants, Broussard warned that the ruling would allow the detention of many youthful-appearing people who had already graduated or otherwise validly left school. Such a person, he suggested, now “should carry his diploma at all times” during school hours.

- When the justices barred the state Fair Employment and Housing Commission from awarding punitive damages in employment discrimination cases, Broussard adopted the view of a state appeal court that had held that such awards lawfully provided a “substantial incentive” for employers to avoid job bias.

In his dissents in capital cases, Broussard has consistently taken a different view of the potential effect of procedural errors made during trial. Many errors that the Lucas court assessed as harmless--in that they could not have affected the verdict--Broussard has seen as serious enough to warrant retrial.

Last month, for example, the court upheld the death penalty for Billy Ray Hamilton, a convicted triple slayer, concluding that the prosecution’s improper admonition to jurors to disregard favorable character evidence for the defendant was harmless in view of the overwhelming evidence against him.

Broussard, while agreeing that the conviction should be upheld, said the death sentence should be set aside because a defendant’s only hope for escaping the gas chamber in such cases may be evidence of childhood hardships or other personal struggles.

“If the jury hears no such evidence or, hearing it, is told not to consider that evidence, the result of the penalty trial is inevitable,” he wrote. “Such a trial does not determine whether death is the appropriate penalty, but functions only as a ritual on the road to execution.”