State High Court Takes Anticipated Turn to the Right

The widely anticipated turn to the right by the newly aligned California Supreme Court emerged in strikingly clear form in a range of decisions issued during 1988.

In the past, under a liberal majority led by former Chief Justice Rose Elizabeth Bird, business, insurers and law enforcement repeatedly suffered defeat. But last year, under a more conservative court led by Chief Justice Malcolm M. Lucas, yesterday’s losers became today’s consistent winners.

The trend was underscored last week in the court’s long-awaited ruling on wrongful discharge in which the justices limited the rights of workers to sue their employers for an unjust dismissal--a decision with sweeping impact on a fast-growing area of employment law.

The ruling followed the justices’ far-reaching reversal last August of a 1979 landmark ruling that had allowed accident victims to bring damage suits against the wrongdoer’s insurance company for the bad-faith refusal to accept a claim.

Uphold Death Sentences

On another front, the court, struggling to reduce a huge backlog of death penalty appeals, issued 56 capital rulings in 12 months, upholding death sentences 43 times.

In the nine years ending in January, 1987, with the departure of Bird and two other justices defeated in the 1986 fall election, the court affirmed the death penalty only four times in 68 rulings.

In other notable criminal law decisions last year, the court abandoned a past ruling that had restricted the use of improperly obtained confessions, opened the way for longer prison terms for repeat offenders and upheld a law aimed at curbing sex offenses by prohibiting loitering at public restrooms.

Throughout the year, the justices showed little inclination to seek societal reform through ground-breaking court decisions--a trademark of the court for the nearly three decades that it was under a liberal majority. The new court looked for guidance from the U.S. Supreme Court and courts in other states and expressed a desire to leave it to the Legislature to make bold changes in state law.

Critics Disturbed

The court’s sharp turn disturbs critics who, while expecting some shift toward judicial conservatism, had hoped the change would not be so abrupt and wide-ranging.

“Since the Lucas court has taken over, we have had a series of decisions which operate to deprive individuals of their economic rights while benefiting large corporate institutions,” said Steven J. Kaplan, a Los Angeles attorney who represented the employee who brought the wrongful-dismissal case decided last Thursday.

“This court, at a visceral level, is much more sympathetic to the corporate world than its predecessor,” Kaplan said.

Michael Laurence, director of a newly formed Death Penalty Project of the American Civil Liberties Union of Northern California, raises concern over the record pace of capital case rulings and the court’s tendency to uphold death verdicts even though a procedural error has occurred at trial.

“I am surprised that the court is not taking a closer look at some of these cases,” Laurence said. “This court is much more willing to find an error was harmless than was the previous court.”

But the beneficiaries of the shift on the court welcome what they see as a more balanced approach and a greater effort to clarify the law for judges, lawyers and litigants.

“This court has a fuller appreciation of what’s involved in a criminal prosecution and a real-life grasp of how a case moves through the judicial system,” said state Chief Assistant Atty. Gen. Steve White.

“In both the criminal and civil area of the law, the court is more inclined to be sensible about the impact of a ruling on the judicial process,” White said. “It seems much more interested in supplying guidance to all parties so we can avoid error where possible.”

In an ironic twist, the court issued several rulings in 1988 that went against Gov. George Deukmejian, a leading critic of the Bird court who named the five justices to the seven-member court who formed a bloc that set a new philosophical course in the law.

Taken by Surprise

This apparent assertion of independence from the influence by the Republican governor took some observers by surprise.

The justices ruled that Deukmejian’s nominee for state treasurer, Rep. Daniel E. Lungren, could not take office with confirmation by only one house of the Legislature; held that a commission made up of Deukmejian appointees could not establish a “sub-minimum” wage for employees receiving tips, and twice refused to hear a Deukmejian Administration challenge to a 1981 Bird court ruling that struck down legislative restrictions on state-funded abortions for low-income women.

Nonetheless, the results in a broad range of decisions issued during the last year signaled a marked change in direction from the old court.

In significant criminal law rulings, the court:

- Upheld three of every four death penalty verdicts it reviewed and, while issuing no particularly far-reaching decisions, made clear that it will not overturn death sentences because of a procedural error that, realistically, could not have affected the outcome of the case.

- Ruled that prosecutors may use improperly obtained confessions to challenge the truthfulness of a defendant’s testimony at trial. The justices, abandoning a 1976 ruling barring any such use of incriminating statements, said that under Proposition 8, the 1982 victims’ bill-of-rights initiative, state courts now are bound by less-restrictive U.S. Supreme Court decisions on the issue.

- Reversed a 1986 ruling by the old court and held that trial judges may review a wider range of court records to determine whether convicted felons may be sentenced to longer prison terms because of previous commission of a residential burglary.

- Held that the state Board of Prison Terms properly rescinded the impending parole of “Onion Field” killer Gregory Ulas Powell based on new evidence that his release could endanger public safety. The decision overturned a contrary ruling by the Bird court in 1986 that had opened the way for the release of the convicted murderer of a Los Angeles police officer in 1963.

- Reversing another decision under Bird, held that trial judges need not warn jurors that eyewitness identifications of suspected criminals may be unreliable and should be viewed with caution. The debate over the reliability of such identifications should be left to trial counsel and expert witnesses to argue before the jury, the justices said.

- Upheld the constitutionality of a state law making it a crime to loiter near a public restroom. The court rejected arguments by civil libertarians that the law would encourage discriminatory arrests against homosexuals.

- Allowed the prosecution for manslaughter of a Christian Scientist parent whose child died after her mother rejected medical assistance in favor of an attempt to heal by prayer. Parents, the court said, have no right to exercise religious beliefs at the price of a child’s life.

In major civil decisions, the court:

- Ruling in the milestone case of Los Angeles executive Daniel D. Foley, held that an employee who is fired without good cause, in violation of a company promise, can sue his employer only for lost pay and other economic loss.

Awards for emotional distress and punitive damages, which could range into hundreds of thousands of dollars, may not be obtained, the justices said. More than 1,000 wrongful discharge suits are filed annually in the state. Attorneys predicted a sharp drop in such litigation because dismissed workers will have less incentive to file suit and attorneys, working on a contingency-fee basis, will be less willing to take on cases.

- Overturned a major ruling by the Bird court and held that accident victims may not bring suit under state insurance law for the insurer’s refusal to fairly settle a claim. The court noted that the previous ruling had been widely criticized and rejected by most other states that had considered it. In California, the justices said, the ruling had produced confusion, inequitable results and high litigation costs.

- Turned down a challenge by state Atty. Gen. John K. Van de Kamp to the $10.1-billion purchase of Getty Oil by Texaco in 1984, ruling that state antitrust law cannot be used to attack mergers by corporations.

- Upheld the constitutionality of Proposition 51, the “deep-pockets” liability-reform initiative limiting damages for pain and suffering and other non-economic injury in civil injury cases. However, the court, limiting the immediate impact of the measure, ruled it will not apply to tens of thousands of cases that were pending when it was passed by the voters in 1986.

- Gave broad protection to prescription drug makers by holding that injured consumers cannot collect damages unless they prove that firms were negligent in making the drugs or in failing to warn of their potential dangers. In another victory for manufacturers, the court also held that cancer victims are not entitled to damages for injury from the drug DES unless they filed suit within a year after they first suspected harm from the substance.

- In a case watched closely by religious groups, ruled in a milestone “clergy malpractice” suit that church pastors may not be held liable for the suicide of a despondent youth to whom they had given spiritual counseling.

- Said that the Rev. Sun Myung Moon’s Unification Church can be sued for fraud for allegedly “brainwashing” unknowing recruits and tricking them into joining the church.

- Barred a single man from suing for the negligence-related death of his live-in girlfriend, ruling that unmarried cohabitants are not entitled to the same rights that the law gives married couples to bring such suits.