Nominee Arabian Called in the Mold of Governor’s Choices

Gov. George Deukmejian’s newest nominee to the state Supreme Court is a pragmatic, moderately conservative but sometimes unpredictable judge who seems much in the mold of the governor’s previous appointees, legal analysts said Saturday.

State Appeal Court Justice Armand Arabian, 55, of Los Angeles could provide key votes in close cases--as did the man he is succeeding, Justice Marcus M. Kaufman, some experts said.

The governor formally named Arabian as his choice for the $115,161-a-year job on Saturday. Kaufman, who officially left the court on Wednesday, proved to be a judicial maverick who sometimes parted company with the four other Deukmejian appointees on the court and joined the court’s liberal minority in some key cases.

“Arabian has a real streak of chutzpah,” said Santa Clara University law dean Gerald F. Uelmen, a close observer of the court. “I think he may display an independent streak that might make him a good replacement for Kaufman.”

Ellis J. Horvitz, an Encino attorney who appears often in civil cases before the court, described the new nominee as a judicial moderate and pragmatist--and a potential court maverick, like Kaufman. “Nobody will ever doubt where Arabian stands,” the lawyer said. “He’s very up front.”

“The court now is not made up of ideologues or academicians, but justices who want to know how their decision will affect people--they’re concerned with practical effects,” Horvitz said. “Arabian will fit right into that.”

Another court authority, UC Berkeley law professor Stephen R. Barnett, expressed doubt that Arabian would fill Kaufman’s shoes as a frequent and sometimes outspoken dissenter.

“He is a solid, workmanlike and conservative judge who respects constitutional rights, but he is unlikely to bring much balance or diversity to the views of the court,” Barnett said. “But he seems to be more predictably conservative than Kaufman.”

A review of some of the highlights of Arabian’s 18-year career on the bench reveals a mixture of judicial results. In criminal cases, for example, there is no evidence that he is heavily inclined toward either the prosecution or defense. Arabian served both as a prosecutor and defense lawyer earlier in his career, and as a judge he has proved tough on criminal defendants but also has reversed convictions when a significant procedural error has occurred.

In civil cases, a recent study by Fred J. Hiestand, counsel to the Assn. for California Tort Reform, showed that Arabian often has ruled to protect defendants from damage awards, but the study also revealed instances where he has upheld the claims of plaintiffs. For example, in one instance, he ruled for a widow who sought more than $300,000 in damages from a group of investors for failing to provide her with proper advice.

Whether issuing an opinion for the majority or raising a dissent, Arabian has sometimes exhibited a colorful writing style.

In limiting an award to a waitress for sexual harassment by an employer, Arabian held that under the law, the state Fair Employment and Housing Commission was no more entitled to order compensatory and punitive damages than it “could order sterilization, castration or lobotomy.”

When the majority ruled that a convenience store could be sued by a customer who was assaulted by thugs after he had left the premises, Arabian vigorously objected. It was improper, he said in a dissent, to cite as evidence of the store’s liability the fact that previously it had occasionally summoned police to protect customers.

“A caring society is ennobled and enriched when citizen observers sound the alarm which seeks a protective response,” he wrote. “The majority view has the practical effect of discouraging activities which benefit the victims amongst us. Do they seek to sanction the deafening silence which responded to the cry of Kitty Genovese?”

In other notable Court of Appeal cases, Arabian has:

* Refused to allow a candidate for public office to sue the Los Angeles County Bar Assn. for libel for saying he was unfit for the job; the Bar was entitled to its opinion, and the candidate had made himself a public figure open to such criticism, he said.

* Affirmed the right of non-Christians to place advertisements in a publication called the Christian Yellow Pages.

* Refused to exclude evidence from a surreptitiously recorded conversation between a 17-year-old murder suspect and his mother in which the boy admitted, “we did it, but I didn’t pull the trigger.” Arabian held there was no reasonable expectation of privacy in such conversations, adding, “indeed, in the jail house the age-old truism still pertains: ‘walls have ears.’ ”

* Ruled unconstitutional a state law that limited personal injury awards to uninsured motorists, finding that the statute violated the right to due process.

* Upheld a state law aimed at preserving the matrimonial family and refused to grant an unmarried man visitation rights to a young girl he claimed was his daughter. The law presumes the co-habitating husband of the mother is the father, and although the unmarried man submitted a blood test indicating that he probably was the father, he was not entitled to visitation rights, the court said.

Arabian has had wide experience on the bench--a characteristic common of the seven appointees Deukmejian has made to the high court since he became governor in 1983.

In announcing the appointment on his weekly radio address, the governor said: “During his tenure on the municipal, superior and appellate courts, he has earned a reputation for well-reasoned legal opinions, intellectual honesty, open-mindedness and a great ability to analyze tough legal problems.”

Deukmejian also took note of the nominee’s sense of humor--a quality cited by others who have known Arabian. One lawyer told how he has sometimes mis-dialed the Court of Appeal clerk’s office and reached Arabian by mistake. The first time, Arabian quickly corrected him but in subsequent incidents the justice has playfully deceived the lawyer into a longer conversation, and, when the joke had played out, revealed his identity and told the attorney, “You’ve done it again!”

Arabian, believed to be the first person of Armenian heritage named to the state high court, grew up in an Armenian community in New York and later, after moving to California, continued to display a vigorous interest in Armenian affairs.

In an interview with the Los Angeles Daily Journal legal newspaper in 1983, Arabian remarked: “Being a member of an oppressed minority has sensitized me to certain positions in society. My family was a victim of Turkish oppression. My grandfather was shot by a firing squad. My family was put on a death march. They struggled to these golden shores in America.”

He also has been a longtime friend and supporter of Deukmejian--and his name has been mentioned repeatedly in recent years when vacancies have arisen on the court.

But authorities on Saturday discounted the suggestion that cronyism led to the nomination. “The appointment is fully justified on the merits of experience and ability,” said attorney Horvitz. “If the governor wants to appoint an old friend who is also a first-rate jurist, more power to him.” Added Uelmen: “There is no suggestion he is any less qualified than anyone else in the field from which he was selected.

As a trial judge, Arabian won wide attention when in 1973 he refused to give jurors a then-required instruction to view a rape victim’s testimony with caution. Two years later, the state Supreme Court struck down the instruction.

Arabian wrote several legal articles on the subject that were used in attempts to overturn similar instructions in other states. He also worked closely with then-state Sen. Deukmejian and other legislators for mandatory prison sentences for rapists.

In another case as a trial judge, Arabian once moved the entire court--including the jury, lawyers and defendant--to the small home of an 83-year-old burglary victim who was unable to come to the courthouse to testify.

Arabian’s name also made the headlines in 1979 when then-Lt. Gov. Mike Curb sought to appoint him to the Court of Appeal while Gov. Edmund G. (Jerry) Brown Jr. was traveling out of state. When Brown returned, he rescinded the appointment.

Later, the state Supreme Court held that while Curb did hold appointive power while Brown was out of state, Brown also had authority to pull back the nomination when he returned.