‘He has a sympathy for working-class people’ : Kaufman Becomes High Court’s Maverick

When Justice Marcus M. Kaufman joined the state Supreme Court in 1987, it was widely believed he would become a solid and unyielding member of the new conservative majority appointed by Gov. George Deukmejian.

But surprisingly, Kaufman has emerged as perhaps the court’s least predictable member--a judicial maverick willing to break ranks and join the court’s liberal minority in major decisions.

While he has consistently voted with other Deukmejian appointees in criminal law cases, he has frequently and outspokenly disagreed with his conservative colleagues in some important civil decisions.

A veteran of two decades on the bench, Kaufman has disagreed with far-reaching rulings that restricted wrongful-termination suits against employers; prohibited use of state anti-trust laws against corporate mergers; and barred the liability of a school district for sexual misconduct by a teacher.

In another display of independence, he parted company with three other Deukmejian appointees last month to write the majority opinion for the court upholding the right of criminal defendants to gain access to confidential police-brutality complaints. This month, he was the lone dissenter when the court, in a novel case, ordered the disbarment of a female attorney who posed as a man to take the State Bar exam for her husband.

High Rate of Dissent

A recent study showed Kaufman with the highest rate of dissent of the five Deukmejian appointees in the year ending last March--a rate second only to the two court liberals, Justice Stanley Mosk and Allen E. Broussard.

“What really impresses me, as opposed to other Deukmejian appointees, is his willingness to chart an independent course,” Santa Clara University law dean Gerald F. Uelmen, the author of the study, said last week. “His opinions have an almost populist tinge to them. He has a sympathy for working-class people.”

Kaufman’s unpredictability in civil matters is recognized by both plaintiffs’ and defense lawyers.

When Kaufman was nominated in early 1987, there was concern within the California Trial Lawyers Assn. that he might too often favor corporate defendants, to the detriment of consumers, workers and others bringing lawsuits. While, as expected, he has since ruled for insurers and other defendants in some cases, his willingness to take a different view in other disputes has heartened plaintiffs’ lawyers.

“He doesn’t seem to have an intransigent bent toward one side or the other,” said Laurence E. Drivon, a Stockton attorney and president-elect of the CTLA. “He’s an independent thinker and his opinions reflect it.”

Steven G. Drapkin, a Los Angeles attorney who often represents business groups before the court, agrees that Kaufman’s eventual votes in such cases are by no means assured in advance.

“The view of defense lawyers is that he’s open to your argument on a case-by-case basis--and not someone who you feel is going to be against you at the outset,” Drapkin said. “To say he is very, very independent is to make the understatement of the year.”

‘High I.Q. Redneck’

The heavy-set, 60-year-old Kaufman, once described by an acquaintance as a “redneck with a high I.Q.,” is good naturedly reluctant to comment about his judicial unpredictability. “There’s not much I can say but in some ways, I can consider it a compliment,” he said last week. “You just consider each case on its merits. If someone can predict in advance how you’re going to vote, that’s not much of a compliment.”

Ironically, Kaufman’s emergence as a court maverick comes as reports have circulated that he intends to retire in January when he completes his 20th year on the state judiciary. “It’s probably best not to confirm or deny that for the time being,” he said in response to an inquiry. “I really have not made any firm plans yet.”

If Kaufman does step down, the court will lose one of its most intriguing figures in recent years.

First in his class at USC law school and then a practicing lawyer in San Bernardino, Kaufman was appointed to the state Court of Appeal in 1970 by then-Gov. Ronald Reagan.

Over the years he won a reputation as a scholarly, conservative and outspoken jurist. In 1979, he wrote a letter to the Los Angeles Daily Journal legal newspaper criticizing Democratic Gov. Edmund G. (Jerry) Brown Jr. for court appointments Kaufman said were an attempt to “impair or destroy the independence of the (judiciary).”

Two years ago, Deukmejian named Kaufman and fellow Appellate Justices John A. Arguelles and David N. Eagleson to the court after the election defeat of Chief Justice Rose Elizabeth Bird and Justices Joseph R. Grodin and Cruz Reynoso.

Of the three new nominees, only Kaufman drew significant opposition--among others, from the United Farm Workers Union and the National Organization for Women. But he and the others were confirmed--and joined two other Deukmejian appointees, newly elevated Chief Justice Malcolm M. Lucas and Justice Edward A. Panelli, to provide a new majority for the court. (In March, Arguelles retired and was replaced by Justice Joyce L. Kennard).

Study in Contrasts

Since then, Kaufman has proved something of a study in contrasts. During oral argument, he sometimes stuns lawyers by asking questions in a stern and booming voice and then appearing incredulous as they attempt to defend their contentions.

“The biggest thrill of my career was being on the receiving end of his questions but not getting flustered,” confessed one lawyer who appeared before Kaufman. “He is a very intimidating presence.”

Yet off the bench, he remains friendly, approachable and relatively low-key, willing to joke about his admitted tendency to be “over-argumentative” in court. A dedicated tennis player, he was recently seen in a courtroom hallway in a business suit and white sneakers, presumably on his way to a different kind of court.

To be sure, Kaufman has remained a member of a solid conservative majority in criminal case decisions. Like other Deukmejian appointees, he has consistently voted to uphold the death penalty. And he has joined the majority in abandoning Bird Court precedents that widened protections for criminal defendants beyond those required by the U.S. Supreme Court.

Similarly, he has stayed with the majority in several significant civil law rulings. For example, he joined a 5-2 majority in overturning a landmark 1979 decision that had allowed accident victims to sue the wrongdoer’s insurer for the “bad-faith” refusal to pay a claim.

And he wrote the majority opinion when the court allowed police to erect roadblocks to snare drunk drivers; broadened the rights of the federal government to the use of water on land it owns in the state; and permitted a grower to limit the access of union organizers to workers’ camps on its property.

Court in Spotlight

Nor did Kaufman waiver when the justices closed ranks to issue unanimous decisions in politically charged cases that put the court in the public spotlight.

After it appeared during oral argument he might vote the other way, he ended up joining the rest of the court in upholding the validity of Proposition 103, the insurance initiative, and in barring Deukmejian’s nominee for state treasurer, Daniel E. Lungren, from taking office without approval of both houses of the Legislature.

Nonetheless, Kaufman has been more willing than any other Deukmejian appointee to reject the majority view. Uelmen’s study, published in the July issue of California Lawyer, shows that from March 28 of last year to March 31 of this year, Kaufman dissented 12.5% of the time. Only Broussard, dissenting in 28.8% of the cases decided in that period, and Mosk, dissenting 26.9% of the time, exceeded Kaufman’s rate of dissent.

Throughout his state high court tenure, Kaufman has parted ways with other Deukmejian appointees in several significant cases.

In perhaps the court’s most widely anticipated civil ruling, Kaufman joined the minority in December, 1988, when the justices held 4 to 3 that workers fired without good cause generally could sue only for lost pay and related economic loss--and not for emotional distress and punitive damages that would provide far larger monetary awards.

Outspoken Dissent

Kaufman, in an outspoken dissenting opinion, assailed the majority’s suggestion that employees did not need the added protection of potentially large awards because they could seek work elsewhere.

“What market is there for a factory worker laid off after 25 years of labor . . . or for the middle-aged executive fired after 25 years?” he asked.

In April, 1988, when the justices unanimously upheld Proposition 51, the “deep pockets” liability reform initiative, but held that it did not apply to thousands of pending cases, Kaufman issued another dissent, joined by Eagleson and Appellate Justice Carl West Anderson, sitting temporarily.

“The electorate . . . clearly voted for immediate relief, not gradual reform 5 or 10 years down the line,” Kaufman wrote. “A crisis does not call for future action. It calls for action now.”

Later that year Kaufman lined up with Mosk and Broussard in Mosk’s vigorous 89-page dissent to a 4-3 court ruling barring California authorities from invoking state anti-trust law to challenge Texaco’s $10-billion purchase of Getty Oil in 1984.

And in a landmark “clergy malpractice” case, Kaufman agreed in a unanimous ruling barring the parents of a suicide victim from suing church pastors who counseled the despondent youth--but, on an important legal issue in the case, issued a separate opinion disagreeing with the court’s conclusion that the counselors owed no “duty of care” to the victim. The church had such a duty, Kaufman said, but had fulfilled it by advising the youth to seek medical care.

Agriculture Case

Last March, when the court ruled 5 to 2 in an important agriculture case that growers must provide workers’ compensation and other protections to “share-farmers,” Kaufman, joined by Panelli, rendered a scathing dissent.

The ruling, he said, was “one of the sadder episodes in the history of this court--a wholly unnecessary and inappropriate intermeddling” with the rights of growers and workers.

Later that month, Kaufman dissented when the court, in a case widely watched by school authorities, ruled 5 to 2 that a school district could not be sued for the alleged sexual assault by a teacher on a teen-age boy. By allowing a “work-experience” program in the teacher’s home without requiring other students or instructors to be present, the district “virtually guaranteed” that any misconduct could occur without fear of discovery, Kaufman said.

In July, Kaufman, with a key vote from the newly appointed Kennard, wrote the majority opinion on a 4-3 decision allowing defendants--without presenting proof that they or others were victims of excessive force--to find out whether an arresting officer has been previously accused of brutality. Three other Deukmejian appointees dissented, saying the ruling would invite “fishing expeditions” by defendants and could lead to “burdensome demands” for file information.

Earlier this month, Kaufman’s independence was strikingly evident when he alone dissented to a court ruling ordering the disbarment of a woman attorney, convicted of false impersonation, who claimed her husband had threatened her life and that of their unborn child if she did not fraudulently take the Bar exam in his behalf.

The woman, he said, had been subject to a “nightmarish” experience and should only be suspended. “Contrary to the majority’s premise, there is no danger to the public or anyone else from (her) one-time, aberrational conduct . . .,” he wrote. “Disbarment serves only to punish an apparently talented lawyer whose misconduct resulted from the most desperate, life-threatening circumstances.”