Mosk Wants ‘Drastic’ Action to Clear High Court’s Backlog

Justice Stanley Mosk warned Saturday that unless there is “drastic” action, its heavy backlog of capital cases will force the state Supreme Court to leave important civil issues unresolved for years.

“Real surgery is needed--not merely a Band-Aid,” Mosk, the court’s senior justice, said at the annual meeting of the State Bar of California. “We have to take drastic steps or civil cases will not be heard for years into the future and the development of civil law in California will be a casualty of the death penalty.”

The impact of the court’s capital-case backlog has drawn increasing attention from legal commentators in recent months. But Mosk’s remarks were the strongest acknowledgment yet by a court member of the severity of the problem.

Death Caseload Grows

When Chief Justice Rose Elizabeth Bird and two other justices left the court after their defeat in 1986, there were 171 capital cases pending.

Since then, under Chief Justice Malcolm M. Lucas, the court has issued a record 54 death-penalty decisions in little more than a year. Nonetheless, as death verdicts continue to come to the court on automatic appeal, there now are 182 capital cases awaiting decision--representing nearly one-half of the court’s full docket of 389 cases.

Mosk, appearing on a panel with several experts on the death penalty, said the “tragic fact” was that numerous cases involving environmental protection, personal injury, civil rights and other important issues either will “not be heard promptly” or “not at all” unless the backlog is reduced.

“I think there is something wrong with these priorities and the (legal profession) in particular ought to be more concerned than it is.”

Renews Expansion Proposal

The justice renewed his proposal for the expansion of the court from seven to 11 members, with the creation of two separate five-member tribunals to hear criminal and civil cases. The chief justice would administer the court and serve on either tribunal as needed, under the plan. Two states, Texas and Oklahoma, operate under a similar system.

Mosk conceded that the proposal--which would require a Constitutional amendment--had drawn considerable opposition in the past, among other reasons, because it would give the governor four politically coveted appointments to the court.

“I would hope we could rise above the political or philosophical considerations . . . to give serious thought to a fundamental change,” he said.

Other proposals made by various authorities--but never seriously considered by the Legislature--would channel death-penalty cases to the courts of appeal before they were taken to the state Supreme Court. Under the state Constitution, death penalty verdicts are appealed directly to the Supreme Court.

Van de Kamp’s View

The court’s capital-case backlog also was discussed here Saturday by state Atty. Gen. John K. Van de Kamp. Questioned by reporters, Van de Kamp agreed that “civil cases are suffering” because of the backlog--including a key case argued 17 months ago that tests the strength of state antitrust laws.

But he said the court should be given more time to see if its recently adopted 90-day limit between argument and a decision and other changes in internal operations could solve the problem.

The four panelists who appeared with Mosk were unanimous in their agreement that the justices’ capital caseload has reached near-crisis proportions.

UC Berkeley law professor Stephen R. Barnett noted that even if the court continued to decide death cases at an accelerated rate, it still might be “eight or nine years” before the backlog was eliminated.

‘Excessive’ Pace

Barnett criticized the court’s rapid pace of death-penalty decisions as “excessive,” saying that it detracted from other cases and “threatened the quality” of all decisions.

Santa Clara University law dean Gerald F. Uelmen called it “pretty depressing” that despite “super-human efforts,” the justices still had not been able to reduce their capital-case backlog.

The court’s continued concentration on death-penalty cases, Uelmen said, could increase the chances of professional “burn-out” and premature retirement among the justices.