Benchmarks : Veteran Liberal Mosk Finds Niche on Conservative High Court

Later this month, scores of friends and associates of Justice Stanley Mosk will gather at a downtown hotel here for a festive dinner marking his 25th year on the state Supreme Court.

The fact that the dinner committee includes both William J. Brennan Jr., the liberal justice of the U.S. Supreme Court, and George Deukmejian, California’s conservative Republican governor, provides a symbolic reminder of the unique and contrasting role Mosk plays at this stage of his formidable career.

Long a leader of the court’s once-dominant liberal bloc, he now often finds himself in a dissenting minority on a conservative-led panel. A nationally acclaimed civil libertarian and legal theorist, he sees landmark precedents he wrote under attack by the new court majority.

Judicial Activist

Yet, befitting an elder statesman, he continues to produce some of the court’s most important decisions, particularly in civil cases. And while still personally opposed to capital punishment, he often joins conservatives to uphold death verdicts in the steady stream of capital cases that come before the court.

Most notably, the venerable, 77-year-old jurist remains the steadfast champion of employing the state Constitution to extend individual rights beyond those required by the U.S. Supreme Court. Thus, not surprisingly, he scorns provisions of the proposed new anti-crime initiative that would limit state law on defendants’ rights to the tougher standards established under federal law.

“If that were to pass, we might as well tear up the Constitution of California, because it will be meaningless,” he said in a wide-ranging interview with The Times. “Our Constitution, for instance, contains the right to privacy, specifically. This new proposal is going to wipe that out.”

The initiative has been at the center of an intense debate, particularly over whether its limits on a defendant’s privacy rights also would restrict the right to abortion.

Mosk declined further comment on the measure--known as the Crime Victims’ Justice Reform Act--because it may eventually come before the court.

Sworn into office 25 years ago last Friday, the court’s senior member shows no sign of slowing down.

He remains, as always, a prolific author of court opinions and, during oral argument, a vigorous interrogator of the attorneys who appear before the justices. Recent compilations by Santa Clara University law dean Gerald F. Uelmen show Mosk as the “real workhorse” of the court over the past two years--producing a total of 76 majority, concurring and dissenting opinions, the most of any of the seven justices.

Routinely, he is in his chambers at the court’s headquarters here by 8:30 a.m., leaving nine hours later with a briefcase packed with reading material.

On weekend mornings, he may be spotted on the tennis courts in an earnest game of doubles (“That’s the way I get rid of my aggressions”). With his second wife, Susan, a third-year student at Hastings College of the Law, he frequently attends the theater or other social events. (Mosk’s first wife, Edna, died in 1981). A dedicated fan of the Giants and 49ers, he still makes the journey to Candlestick Park to watch a baseball or football game.

‘Not Aiming at Any Record’

For outside reading, he has recently completed William Manchester’s biography of Winston Churchill and former state Supreme Court Justice Joseph R. Grodin’s book, “Pursuit of Justice.” Mosk himself anticipates writing a book on the law, but is not yet prepared to discuss the project.

Mosk has no retirement plans but turns aside suggestions that he will attempt to exceed the record 35-year tenure of Justice John W. Shenk, who served on the high court from 1924 to 1959.

“I am not aiming at any record of longevity,” says Mosk. “The only target date (for retirement) I have is when I wake up in the morning and say, ‘I hate this job. . . . ‘ But up to now I still get up looking forward to the day.”

By wide acknowledgement, Mosk has exerted broad influence and won unusual stature for a state court judge. In more than 600 opinions, he has issued landmark rulings in virtually all important areas of the law. Among many others, he has written decisions extending state environmental requirements to private builders, upholding the privacy of bank statements and barring the removal of prospective jurors for racial reasons. The ruling on jurors was followed by a similar U.S. Supreme Court ruling eight years later.

Much of his national acclaim stems from his long campaign urging state judiciaries to extend individual liberties under their own constitutions. Under this doctrine, known as “independent state grounds,” federal guarantees provide a minimum “floor” from which states can expand the rights of defendants and other individuals. The doctrine has won increasing acceptance in state courts across the nation--but still provokes some controversy among legal scholars.

“Mosk was clearly a decade and a half ahead in looking for ways to secure and safeguard individual rights,” says Ronald K. L. Collins, a visiting law professor at Temple University and co-author of a forthcoming book on state constitutional law. “What is just now beginning to see the light of day in other states was long ago championed by Stanley Mosk.”

However, some critics see Mosk’s states-rights advocacy as a thinly camouflaged brand of “judicial activism”--a means of bending the law to achieve liberal social and political goals.

“Under Mosk’s doctrine, the state court can’t be less liberal than the U.S. Supreme Court--it’s really a one-way street,” says Prof. Edward J. Erler, the head of the political science department at Cal State San Bernardino who has written widely on the Constitution and judicial power.

“The use of independent state grounds (for judicial rulings) is a legitimate constitutional doctrine,” says Erler. “But its use by Mosk and others has been quite cynical. It’s been employed as a disguise for judicial activism . . . and result-oriented jurisprudence.”

But as a member of the current state high court under Chief Justice Malcolm M. Lucas, Mosk has found himself on the defensive against a new majority that appears much more inclined to defer to federal precedents than to break new ground under state law. “The irony,” notes Collins, “is that the message Mosk has been delivering is being heard today more outside California than inside California.”

Last year, the justices overturned a major 1976 ruling by Mosk that had barred the use of an improperly obtained confession to challenge the truthfulness of a defendant who testifies at trial. The high court, citing the 1982 Victims Bill of Rights, said the use of such statements, long permitted under federal law, must also be permitted in California.

The court issued a similar ruling in another case last July, adopting a federal standard making it easier for prosecutors to show a confession was voluntary and thus admissible as evidence in state courts. Mosk concurred, saying he was forced to under the current state of the law, but blasted the 1982 initiative as “ill-conceived” and responsible for a “path of destruction” through individual rights.

Mosk has been on the losing side of battles with the new court majority on other fronts as well.

The justices last year threw out a 1979 Mosk milestone that had allowed accident victims to sue the wrongdoer’s insurer for bad-faith refusal to settle a claim. The high court held that the 1979 ruling had proved too confusing, costly and unfair, and should be abandoned.

In another case, the new court held that workers could not sue insurers under state law for being unfairly denied health plan benefits. Such suits, the court said, were barred under more restrictive federal regulations. Mosk issued a sharp dissent, condemning the “growing and ominous trend” toward federal preemption of issues that ought to be decided by the states.

The court last year also overturned a decision Mosk had written requiring trial judges to warn jurors that eyewitness identifications may be unreliable and should be viewed “with caution.” The new court said that any such warnings should be made by trial counsel and expert witnesses--not judges.

Mosk himself recognizes that the court under Lucas may be retreating on states’ rights and other forms of judicial trailblazing. He expresses disappointment--but not bitterness--noting, for example, that the new court’s ruling on confessions arguably was compelled under the 1982 anti-crime initiative.

But while Mosk and Justice Allen E. Broussard remain the only generally acknowledged liberals on the court, Mosk continues to write a surprisingly large number of significant rulings by the Lucas Court. Uelmen’s study notes that in the past two years, Mosk has written 30 majority opinions for the court, second only to the 33 issued by Lucas.

Among others, Mosk produced the court’s most significant capital punishment holding to date, a 1987 decision that overturned a controversial 1983 ruling he himself had joined that had barred the death sentence in felony-murder cases unless the jury specifically found the defendant intended to kill his victims.

Often Sides With Majority

And although he has issued sharp dissents in a number of capital cases, Mosk, by unofficial count, has joined the majority in 36 of the 59 rulings the Lucas Court has issued since 1987 affirming sentences of death.

“If I were a legislator, I would vote against the death penalty,” he said in the interview. “But I took an oath to support the law as it is--and not as I might prefer it to be.”

On other fronts, Mosk also wrote important rulings for the new court preventing unmarried persons from suing for damages for the negligent accidental death of a cohabiting lover; allowing manslaughter charges against a Christian Scientist who failed to obtain medical care for a fatally ill child; and overturning a sub-minimum wage for waiters and other workers who receive tips on the job.

Like most judges, Mosk dislikes the oversimplifying labels that are so easily attached to jurists by court observers. But he says he will not quarrel when he is described as a liberal with a strong streak of independence. “I don’t like to be pigeonholed,” he says. “I try to look at each case individually and reach what I think is the appropriate conclusion.”

He disputes the suggestion of any major change or inconsistency in his legal philosophy over the years. For example, rejecting claims by some critics, he sees his 1976 ruling upholding the reverse-discrimination claims of Allan Bakke--a white applicant to the UC Davis Medical School who was rejected in favor of less-qualified minority applicants--as consistent with his 1978 decision barring discrimination against blacks in jury selection. In both instances, he notes, there was unconstitutional race bias.

Mosk discussed these other subjects during the interview:

JUDICIAL ELECTIONS--He said he believes that the 1986 general election, resulting in the defeat of Grodin, Chief Justice Rose Elizabeth Bird and Justice Cruz Reynoso, was an “aberration” and that a bitterly contested statewide judicial campaign is not likely to recur. But he is concerned that the heated controversy over abortion could spill over into future judicial elections. “That does raise the possibility of another 1986-style campaign--but I hope not,” he said.

THE COURT’S STATURE--”This was a great court as established originally by Chief Justice Phil Gibson and it reached its peak under Chief Justice Don Wright,” he said. “Unfortunately the controversies that peaked in 1986 did hurt the prestige of the court. I believe that it is being restored gradually.” From outside California, he believes, the new court is seen by legal authorities as “a competent court and a very good court in professional terms.”

CAPITAL CASELOAD--The court’s backlog of death-penalty cases has placed a heavy burden on the justices, and “unfortunately, it affects our ability to take on other cases where we might establish useful law,” he said. As in the past, Mosk advocates an expanded, 11-member court, divided into separate panels for criminal and civil cases.

INITIATIVES--The initiative process in California needs reform, he contends. “It was a great concept when Hiram Johnson developed it,” he said. “But today it takes such a great amount of resources to qualify an initiative and get it passed that it has become a tool of vast special interests.” He favors a close look at proposals that would channel proposed initiatives through the Legislature to correct procedural flaws before they were placed on the ballot.

STANLEY MOSK: A PROFILE

Stanley Mosk, Associate Justice, California Supreme Court.

Born: Sept. 4, 1912, San Antonio, Tex.

Law Degree: University of Chicago, 1935.

Government Service: Executive secretary to Gov. Culbert Olson, 1939-43. Judge, Los Angeles Superior Court, 1943-59. State attorney general, 1959-64. State Supreme Court justice, 1964 to present.

RULINGS

* In re Lynch, 1972. A life sentence for indecent exposure is so disproportionate it represents cruel and unusual punishment prohibited under the state Constitution.

* Friends of Mammoth vs. Board of Supervisors, 1972. State environmental law requires that environmental impact reports be filed by private builders.

* Burrows vs. Superior Court, 1974. Bank depositors have a legally protected expectation of privacy in their bank statements.

* Rodriguez vs. Bethlehem Steel, 1974. A married person may sue for loss of companionship and sexual relations when a spouse is injured by a third party.

* People vs. Disbrow, 1976. The state Constitution bars use of improperly obtained confessions against defendants who testify in court.

* Bakke vs. Regents of UC, 1976. Racial quotas that discriminate against non-minority college applicants are unconstitutional.

* People vs. Wheeler, 1978. Peremptory challenges may not be used to remove prospective trial jurors for racial reasons.

* Hawkins vs. Superior Court, 1978. Defendants indicted by grand jury are entitled to preliminary hearings in open court.

* In re Marriage of Carney, 1979. Handicapped parents may not be denied custody of their children on basis of physical disability alone.

* Sindell vs. Abbott Laboratories, 1980. Victims of drug DES may sue all manufacturers on the basis of their market share when the specific provider of the harmful substance is unknown.

* People vs. Shirley, 1982. Testimony by a witness who has undergone hypnosis by police is not sufficiently reliable and is inadmissible in court.

* Spiritual Psychic Science Church of Truth vs. City of Azusa, 1985. Municipal ordinance prohibiting fortunetelling for profit violates right of free speech.

* People vs. Anderson, 1987. A finding of intent to kill is not required to sentence to death a defendant who kills during commission of a felony.

* Elden vs. Sheldon, 1988. Unlike a married person, an unwed man may not sue for emotional distress damages for the negligent accidental death of a woman he lived with.

* Walker vs. Superior Court, 1988. A mother who uses prayer rather than summoning medical assistance for a fatally ill daughter may be prosecuted for manslaughter.

* Molko vs. Holy Assn., 1988. A religious organization may be sued for fraud for allegedly “brainwashing” unknowing church recruits.

* Henning vs. Industrial Welfare Commission, 1989. Labor statutes bar a “two-tiered” system providing a sub-minimum wage for tipped workers.