Politics May Be Verdict on High Court for Decade of ‘80s : Justices: The unprecedented ouster of three liberals changed the complexion of the chamber. Some legal scholars see it as permanently politicized.

California’s Supreme Court will be remembered in the decade of the 1980s more for the political winds that howled through its chambers than the long-term effects of its decisions.

Whipped to a near frenzy over high court decisions reversing 64 of 68 death sentences in eight years, voters ran Chief Justice Rose Elizabeth Bird out of office in a statewide election in November, 1986.

The ouster of Bird and two other justices, Joseph R. Grodin and Cruz Reynoso, was unprecedented in the 139-year history of the California high court.

The decade of the 1980s became a tale of two very different courts.

On a single day in 1986, voters purged the state Supreme Court of three decades of liberal domination by routing Bird, the first woman to serve on the court, Grodin, a respected labor lawyer, and Reynoso, the court’s first Latino member.

Almost as soon as Bird joined the court in 1977 she came to symbolize in the public consciousness a liberal, “soft-on-crime” judge.

The trio was rejected on the strength of their votes reversing death sentences alone.

The seven-member court went from a 5-2 liberal majority in 1986 to a 5-2 conservative-dominated court in March, 1987.

Gerald Uelmen, dean of Santa Clara University Law School said, “Certainly the watershed of the 1980s has to be the 1986 election, the kind of siege mentality that infected the court prior to 1986 and the remarkable shift in philosophy after the election.”

In the last three years, the conservative-dominated court has retrenched from the outer limits of some Bird court civil liberties rulings.

The Lucas conservatives churned out death penalty decisions almost to the exclusion of competing social issues and faced continued public suspicion that justices decide cases with a finger raised to test shifting political winds.

Legal scholars who watch the court and even former Justice Grodin express fears that the bitter election has permanently politicized the courts and made judges overly attentive to public opinion.

Grodin said, “The atmosphere (around the court) has been polluted by the politics.”

“I am not suggesting judges decide cases based on what will happen in the next retention election, but it is a lingering shadow,” Grodin said.

Stephen Barnett, law professor at the University of California, Berkeley’s Boalt Hall, suggested that the conservative court “went into contortions to uphold Proposition 103,” the insurance rate rollback initiative passed in 1988.

That decision “may show the justices were somewhat traumatized by what happened in 1986,” he said.

When the conservative majority in 1989 refused to take up the anti-abortion cause of cutting off funding to MediCal abortions, one abortion foe suggested it was because the justices did not want to step into the abortion fight with the 1990 statewide confirmation vote looming just one year away.

Uelmen said, “I think timing does become very important. I am not surprised the court was not anxious to put that (the abortion issue) on the plate in an election year.”

No more striking example exists of the fundamental philosophical shift on the court than the change from reversing to affirming death sentences.

Within two years of Bird’s departure, the court’s affirmance rate of death penalty appeals moved from third lowest in the United States to the eighth highest, according to Uelmen.

The Deukmejian court, led by Chief Justice Malcolm Lucas, the governor’s former law partner and a close friend, affirmed 61 of the 87 capital appeals it reviewed in less than three years.

Michael Laurence, head of the death penalty project for the American Civil Liberties Union, said the conservatives appeared to be going back, not just to a time before Bird arrived in 1977 but well before the 1972 high court decision prohibiting use of the death penalty under California’s constitution.

“The most startling thing about the change in outlook has been the transformation from being a leader in protecting constitutional rights to that of following the distressing nationwide trend to ignore the Constitution in the name of crime control,” Laurence said.

It is not just the death penalty that distinguishes the two courts.

Prior to 1987, the Bird court majority:

* Opened the entire state court system to cameras and tape recording;

* Expanded state civil rights law to open apartments and later condominiums to children, ending adults-only facilities;

* Ruled public employees have the same right to strike as private workers;

* Prohibited some forms of private clubs from arbitrary exclusion of women, opening the Santa Cruz boys club to little girls;

* Prevented counties from relegating welfare recipients to “poor farms” in lieu of monetary payment;

* Ordered police to get search warrants before using airplanes to spy for illicit back-yard marijuana crops;

* Upheld a $250,000 ceiling for medical malpractice claims against doctors for pain and suffering;

* Approved a $20-million Levi Corp. refund for overcharges;

* Decriminalized public drunkenness, and

* Required that jurors find an “intent to kill” by murderers sentenced to death.

The Lucas court majority in just the last three years:

* Overturned the “intent to kill” requirement, clearing the way for the court to uphold a score of capital sentences;

* Curtailed an employee’s ability to claim damages for wrongful firing by an employer. That overturned a Bird court decision of 1980.

* Approved mandatory auto insurance;

* Upheld adults-only restrictions for mobile-home parks;

* Extended imprisonment of Onion Field killer Gregory Powell after the Bird court ordered his release;

* Barred the sub-minimum wage for tipped employees;

* Banned damages against insurance companies who refuse or fail to honor legitimate claims, also overturning a Bird court ruling that had been the first in the nation to protect consumers against insurance abuses;

* Upheld Proposition 103, the insurance rate rollback initiative;

* Approved police use of roadblocks to seek out drunken drivers, and

* Allowed police to stop and question youthful-looking people during school hours to determine if they were truants.

In 1982, Bird was a major issue in the California governor’s race, the U.S. Senate race for S. I. Hayakawa’s seat and the race for state attorney general.

It was no accident.

Little more than a year after she was appointed by Democrat Gov. Jerry Brown in February, 1977, state Sen. H. L. (Bill) Richardson (R-Glendora), an arch-conservative, fired his first volley at Bird.

Richardson, as leader of a New Right movement to revolutionize the nation’s court, took aim at California’s highest court and specifically Bird.

“The most monumental thing (in the 1980s) was Bird on the court and the damage she did,” said Richardson, who has retired from the state Senate.

Richardson said the new justices mirror the political philosophy of Republican Gov. George Deukmejian, who appointed them.