Court Nominee’s Fast Rise Raises Uncertainty on Legal Ideology

Gov. George Deukmejian’s previous five appointees to the state Supreme Court had one thing in common: All were experienced judges with well-established records that invited predictions of the moderately conservative course they since have followed on the high court.

But there are no bold, sweeping prophecies being made about the governor’s newest nominee, Appellate Justice Joyce L. Kennard of Los Angeles.

“She’s climbed the ladder so fast--one year on the Municipal Court, one year on the Superior Court and one year on the Court of Appeal--that no one can know for sure what she will be like when she settles in on the Supreme Court,” said UC Berkeley law professor Stephen R. Barnett.

“Kennard obviously knows the existing law well,” he said. “The question will be how she will deal with the ideological and philosophical dimensions of making the law. It will be very interesting for everyone--including the governor--to see how she turns out.”

Legal authorities do say that based on the limited number of opinions she has written, they expect the 47-year-old Kennard--if confirmed as expected--to be as tough on criminals as the other Deukmejian appointees on the court.

But there is considerable uncertainty over how she will perform in major civil cases. Her opinions show no tendency to favor either plaintiffs or defendants, nor can they be interpreted as necessarily “pro” or “anti” business. In one case, for example, she ruled against an insurance company, but in another, an insurer came out the winner.

Although the newly aligned court has sided with business more than its liberal predecessor, some important civil decisions have come on 4-3 votes--such as its ruling in December substantially limiting damages employees may collect for wrongful discharge. And observers say Kennard’s role could prove pivotal as new issues arise in the civil arena in the years ahead.

“She is definitely going to be an important member of this court,” said Fred J. Hiestand of Sacramento, counsel for the Assn. for California Tort Reform. “There have been a number of close decisions, and she could tilt the court in a different direction.”

Authorities do not see Kennard’s relative lack of judicial experience as a major impediment to success on the high court.

Useful Background

Her five years as a lawyer in the criminal division of the attorney general’s office, followed by seven years as a senior staff attorney doing legal research on the Court of Appeal, could provide useful background for her work on the high court, they say. And, they add, an open mind can be as beneficial as judicial experience when it comes to deciding the cases that come before the court.

“I’d like to think that when justices come on the Supreme Court they are not committed to any preconceived agenda,” said Harvey R. Levine of San Diego, president of the California Trial Lawyers Assn. “The position is so important, affecting so many lives and economic interests, that it’s better they come on thinking about the issues in a fresh and independent way.”

Kennard’s unique background and personal qualities are other factors seen as weighing in her favor. Born in Indonesia of a Dutch father and Chinese-Indonesian mother, she spent part of her childhood in a World War II internment camp in West Java, migrated with her widowed mother to Holland, survived the loss of a leg and then came to Los Angeles at age 20 to take a job as a secretary. Later, after her mother died, she used a $5,000 bequest to enter college, finishing up with a Phi Beta Kappa undergraduate degree and a law degree, both from USC.

Robert H. Philibosian, a Los Angeles lawyer and former chief assistant state attorney general and Los Angeles County district attorney, recalls Kennard’s departure from the Department of Justice as “the greatest loss we ever had in the criminal division.”

“Every place she’s been in the system she’s drawn rave reviews from experienced, critical, hard-nosed people,” said Philibosian. “She is no apple polisher. She’s very independent and she’s going to be an excellent justice.”

Experienced as Judges

The five justices previously appointed by the governor had extensive backgrounds on the bench. Chief Justice Malcolm M. Lucas, appointed as an associate justice in 1984, had spent 17 years as a state and federal trial court judge. Justice Edward A. Panelli, taking office in 1985, had served 13 years as a judge. Justice John A. Arguelles had been a judge for 24 years, David N. Eagleson for 17 years and Marcus M. Kaufman for 17 years when they were appointed in 1987.

By contrast, Kennard’s career on the bench began Feb. 28, 1986, when she took the oath to become a judge on the Los Angeles Municipal Court. Deukmejian elevated her to the Superior Court in 1987 and to the Court of Appeal in 1988.

The opinions she has issued as an appellate justice are seen by legal scholars as concise, clearly written and generally well reasoned. “She is willing to call the pitches as they come over the plate, without regard to who the parties in the case are,” said Barnett. “Her opinions are wonderfully direct.”

Since her nomination to the high court, much attention has focused on a civil decision filed in 1987 when she was a Superior Court judge serving temporarily on the Court of Appeal.

Writing for a unanimous three-member panel, Kennard upheld a $5-million punitive damage award against an insurance company for refusing in bad faith to pay benefits to a savings and loan association allegedly defrauded by one of its employees.

Kennard rejected the insurer’s contention that the award was excessive, amounting to nearly 2% of its net worth. She noted that other courts had upheld awards representing over 3% of a company’s net assets. “Because the purposes of punitive damages are to punish the wrongdoer and make an example of him, the wealthier the wrongdoer, the larger the award of punitive damages,” she wrote.

Basis of Decision

She also turned down the company’s claim that the big damage award violated the federal constitutional prohibition against excessive fines. “The 8th Amendment applies only to criminal actions, not to purely civil penalties, as involved here,” she said.

Levine, an advocate for plaintiffs’ lawyers, is enthusiastic about Kennard’s opinion in the case. “This was a very important ruling,” he said. “It was probably one of the best I’ve seen in the punitive damages field in its legal analysis and reasoning.”

But Hiestand, speaking for defense lawyers, is concerned that Kennard had too easily dismissed the constitutional issue of excessive penalties--a question that now is under review in a case before the U.S. Supreme Court. “The matter is not nearly so clear as she states,” he said. “Her treatment of the issue seems a bit cavalier.”

In another civil case, however, Kennard wrote the majority opinion in a 2-1 ruling in favor of an insurance company that had been sued on the grounds that it improperly failed to provide a policy broad enough to protect all the personal assets of apartment building owners facing a negligence suit.

There was no showing in this case that the insurer knew the extent of the owners’ assets, nor was there proof the owner would have been willing to pay a higher premium for expanded coverage, Kennard said. Thus, the insurer had no duty to provide complete liability coverage, she said.

Lawsuit Reinstated

In a another ruling issued last December, Kennard reinstated a lawsuit brought by a 74-year-old widow against an attorney who allegedly told her falsely that a bench warrant had been issued against her for failing to pay a debt.

While state law provides lawyers some protections for their actions during litigation, in this case the attorney’s “blatantly false statements” appeared not only unethical but possibly criminal, and the widow could pursue her suit, the justice said.

Most criminal convictions that come before the state Court of Appeal are upheld and, in her limited service on the court, Kennard has ruled consistently against criminal defendants.

In one of her first decisions, Kennard refused to overturn the conviction of a murder defendant who sought a new trial because his first lawyer was removed by a judge for not being ready for trial 17 months after she received the case.

The lawyer’s failure to offer good reason for the delay, and refusal to say when she would be ready for trial, “constituted undue delay and a disruption of the orderly process of justice,” Kennard wrote for a unanimous court.

In a case decided last July, she upheld the conviction in a burglary and attempted rape case, rejecting the defendant’s claim that he should have been placed in a police lineup with other people rather than being identified at his residence soon after the crime by the victim.

Assessment of Error

In another issue in the case, prosecutors conceded that the trial judge had improperly allowed jurors to consider the fact that the suspect had fled from the scene of the crime as evidence of guilt. But they argued that the error was harmless in view of other evidence in the case.

Kennard, in a relatively unusual action, refused to accept the prosecutors’ concession of error, finding instead that the jury was properly allowed to consider flight from the scene.

Last August, in another unanimous opinion, Kennard turned down an attempt by a defendant to have stricken from his record, after completion of his probation, a conviction for receiving stolen property. The panel ruled that the dismissal should be denied because the defendant had failed to fully pay $2,571.65 in court-ordered restitution as required under terms of his probation.

In January, Kennard wrote a unanimous opinion allowing illegally obtained evidence to be used in revoking the probation of a defendant who was arrested while carrying a concealed weapon.

Kennard, citing a decision by the appellate court in another case, said that under Proposition 8, the anti-crime initiative passed by voters in 1982, such evidence was relevant and thus admissible in probation revocation hearings.

Janice Kamenir-Reznik of Los Angeles, president of California Women Lawyers and a close acquaintance of Kennard, makes no predictions on how the new justice would vote on important criminal or civil questions, or how she would react on such politically sensitive issues as abortion.

“She’s not a knee-jerk person,” Kamenir-Reznik said. “She’s an independent person who will use her legal knowledge and her reasoning skills and reach her decisions on a case-by-case basis.”

Other authorities draw similar impressions of the new nominee. “She’s well regarded in terms of her judicial capacity,” said Gerald F. Uelmen, law dean at Santa Clara University. “She’s generally seen as a conservative justice, but not any sort of ideologue.”

Said Kamenir-Reznik: “This is an unusual woman, one who embodies the American dream. She’s endured a lot of adversity and beaten the odds to come out on top.”