Decisions by State Justices Drop Sharply

The output of decisions by the state Supreme Court decreased sharply in the past year, a new study has found. At the same time, the apparently overburdened court proved more reluctant to accept new cases for review.

“The justices appear to be working harder than ever, with less to show for it,” Santa Clara University law dean Gerald F. Uelmen, a close observer of the court, concluded in an annual analysis prepared for the legal magazine California Lawyer.

Uelmen, reviewing the court’s third year under Chief Justice Malcolm M. Lucas, noted a “precipitous drop” both in court opinions and in cases the justices agreed to decide. “Compared to the frantic pace of its second year, the court seemed to be crawling,” he wrote.

The study provided new documentation to support widespread concern in the legal community that the court, facing a consistently heavy backlog of capital cases and constrained by other time-consuming factors, is being forced to neglect important issues--particularly those raised in civil cases.

Among other things, the study found that:

The justices issued only 105 opinions in the year ending March 31, compared to 142 the year before. And 43 of those decisions--41% of the total output--were issued in routine attorney discipline cases. In the past 10 years, the court has averaged 137 opinions annually.

The court in the past year filed only 28 civil decisions--27% of its total output--compared to 41 in the previous year.

Review was granted in only 80 cases, compared to an average of 268 annually during the past 10 years. Grants of review in civil cases dropped to 50 from 148 the previous year.

The court decided only 19 capital cases, compared to a record-breaking 55 the year before. But the current pace still exceeds that of the court under former Chief Justice Rose Elizabeth Bird, which averaged fewer than 10 death penalty rulings a year.

In the past two years, the court has instituted some measures to streamline procedures but has declined to seek more sweeping changes advocated by some legal experts--such as a change in the law that would allow initial review of capital cases by the state Court of Appeal.

Uelmen, noting the sudden retirements of two court members in recent months, said that “some serious institutional reform” is essential if the turnover on the court reflects an intolerable work level.

“Simply finding justices with more stamina is hardly the answer,” he wrote. “Perhaps the greatest failing of the Lucas court will be its unwillingness to admit there’s a serious problem, and to put serious institutional reform at the top of its agenda.”

Lucas, through an aide, declined comment on the study and whether major reforms are needed.

The court’s public information officer, Lynn Holton, noted that a number of changes in internal operations already have been implemented by the court as recommended by a blue-ribbon commission that studied the problem in 1988.

Among other things, draft opinions are considered simultaneously by the justices, rather than one at a time; time limits are imposed on memorandums the justices prepare in analyzing cases; and a newly created central staff of research attorneys helps evaluate petitions for review in civil cases. “All these measures are designed to eventually speed up the work of the court,” Holton said.

The justices have been heavily burdened by a persistent backlog of more than 180 pending capital cases, as well as an unusually high number of relatively unimportant bar-discipline cases.

As Uelmen acknowledged, output undoubtedly also suffered because of disruptions of the October earthquake, which forced the justices into new quarters here. And further delays resulted from the turnover on the court, as Justices John A. Arguelles and Marcus M. Kaufman retired after relatively brief tenures.

But Uelmen concluded the “chief culprit” in the court’s downturn in productivity during the past year was a new internal procedure--called the “90-day rule”--that the justices put into effect in January, 1989, in an effort to speed the decision-making process.

Under this procedure, decisions are to be issued within 90 days after oral argument in cases that have been granted review. In applying the rule, the court now spends more time considering a case before argument, rather than after it. While there is no assurance of a reduction in the overall time a particular case is before the court, the justices adopted the rule in the hope that eventually most cases would be decided faster.

But Uelmen concluded that as the 90-day rule has been implemented, cases awaiting argument have backed up, particularly those that are more difficult and require more consideration. Meanwhile, the court has granted review in far fewer cases, and thus will be issuing fewer decisions in the future.

“The slowdown promises to be more than a temporary phenomenon,” Uelmen wrote. “ . . . The adoption of the ‘90-day rule’ certainly hasn’t solved any of the court’s problems, and may have exacerbated them.”

Legal experts have long advocated various proposals to ease the burdens resulting from the 35 to 40 capital cases that come to the court annually. But the justices themselves have declined to seek such reforms. Any change in the appeal process for death cases would require a constitutional amendment--and, because of the volatility of the issue, would be likely to drag the court into political controversy it would rather avoid.

Retiring Justice Kaufman, in a farewell meeting with reporters last month, indicated that several of the justices now favor giving the Court of Appeal a role in reviewing capital cases in order to reduce the high court’s burden.

Under current law, capital cases go directly to the high court, which, before issuing a decision, must review tens of thousands of pages of documents and examine scores of complex, time-consuming issues. Under one of several proposed alternatives, all death verdicts would go first to a Court of Appeal. Then the justices would continue to review judgments of death upheld by an appeals court, but would consider death penalty reversals only at their discretion.