Liberal Justice Broussard to Retire in 1991

Justice Allen E. Broussard, the leading dissenter and most liberal member of the conservative-led California Supreme Court, announced Thursday that he will retire from the bench this year.

The 61-year-old Broussard, a judge for 27 years, has spent nearly 10 years on the Supreme Court and is only its second black member in history. His impending retirement will enable Republican Gov. Pete Wilson to make his first appointment to the high court.

Broussard’s departure will leave only one acknowledged liberal--Justice Stanley Mosk--on a court that has been controlled by a majority of five moderately conservative appointees of Republican Gov. George Deukmejian after the defeat of then-Chief Justice Rose Elizabeth Bird and two other liberals in the November, 1986, election.

“I know now what Thurgood Marshall must have felt like when William Brennan announced his retirement,” said Mosk, referring to the two steadfast liberals on the conservative-dominated U.S. Supreme Court. “Justice Broussard has been a legal giant, in my estimation. His departure is going to be seen as a severe blow to the administration of justice in California.”

Some close observers of the court expressed concern that Broussard’s retirement could leave the court without the philosophical balance that all courts--whether liberal or conservative--need to produce thorough and well-reasoned decisions that have been tested against the views of the minority.

“His departure poses the threat of severely unbalancing the court by all but removing its liberal wing,” said UC Berkeley law professor Stephen R. Barnett. “The court needs dissenters and it needs the ability to form a liberal-moderate majority in at least some cases. . . . There should be criticism and opposing views of what the majority is doing.”

There were immediate calls for Wilson to name a minority-group member to replace Broussard. “It’s very important to have that kind of diversity on the court,” said Gerald F. Uelmen, dean of law at Santa Clara University. “It’s going to be all the more important that this jurist be replaced by a minority.”

Bill Livingstone, a spokesman for the governor, said it had not been determined when to begin a search for a successor.

The retirement of Broussard also will mark the fourth such departure of a justice since the spring of 1989, an unusually high rate of turnover that many authorities say has hampered the high court’s productivity. Recently, the court’s pace of decision-making has increased, but any change in its makeup inevitably slows that pace to some degree, authorities say.

“The kind of turnover we’ve had in recent years has got to have an adverse effect,” said Ellis J. Horvitz, an Encino attorney who frequently argues civil cases before the justices. “There’s always a ‘learning curve,’ of course, and it takes time before a new justice gets comfortable with the others and develops a working relationship.”

Broussard’s retirement announcement came as a sharp setback for criminal defense lawyers, civil plaintiffs’ attorneys and others who generally have not fared well before the court under Chief Justice Malcolm M. Lucas.

Ephraim Margolin of San Francisco, former president of the Criminal Trial Lawyers Assn. of Northern California, likened Broussard’s role on the state high court to that of Brennan, a liberal fixture on the U.S. Supreme Court for decades and frequent dissenter as the court became more conservative.

“Justice Broussard is compassionate and extremely bright and competent--everything a judge is supposed to be,” said Margolin. “It is dissenters--like (Oliver W.) Holmes or (Louis D.) Brandeis--who have predicted the way the law should go--and it is the dissenters we have now who are fighting to stop the total erosion of where we have been.”

Broussard had been reportedly considering retirement for some time and his announcement was not totally unexpected. He had privately informed the court and staff members earlier this week that he intended to step down. In a brief statement issued through a court aide, Broussard said Thursday: “It has been a privilege to serve the people of California. I have enjoyed the opportunity of serving on every level of the state court system.” He declined further comment.

There was considerable speculation that Broussard may have become discouraged with his role as a member of the court’s minority. “I believe Broussard in recent years has felt isolated,” said Santa Clara’s Uelmen. “It may be that he saw he was likely to stay in the minority and that this was as good a time to leave as any.”

One close associate said Broussard had not appeared discouraged and suggested that after a long career in public life, Broussard simply wanted to enjoy the benefits of retirement. Having served more than 20 years on the state judiciary, Broussard is eligible to collect 75% of his current annual salary of $121,207.

The justice set no time for his retirement, saying only that he would step down “sometime during 1991.” Associates expect he will sit with the court at least through June.

Broussard, born in Oakland and a top-rated graduate of the UC Berkeley law school, served as a Municipal and Superior Court judge in Alameda County and temporarily on the state Court of Appeal before he was named to the Supreme Court by Democratic Gov. Edmund G. Brown Jr. in 1981.

In his early days, Broussard was part of a solid liberal majority that prevailed during the Bird years. He wrote a number of major decisions for the Bird court, including a 1983 ruling that held that under the “public trust” doctrine, officials must consider environmental and recreational values in allocating scarce water resources.

Then in 1986, as Bird and Justices Cruz Reynoso and Joseph R. Grodin fell victim to a rigorous campaign led by Deukmejian, Broussard found himself in a new liberal minority along with Mosk.

Broussard remained an aggressive and persistent questioner from the bench and the author of several important decisions--but also became the most frequent dissenter on the Lucas court. He sharply dissented, for example, when the court upheld the legality of sobriety checkpoints. He also objected vigorously when the justices, overturning a ruling he wrote in 1983, held in 1987 that the death penalty could be imposed without a finding that the killer intended the death of his victim.

That pattern has continued right up to his announced retirement. In the 119 decisions the court has issued since January, 1990, Broussard by unofficial count has voted in the minority 30 times, often issuing a sharply worded dissenting opinion.

Earlier this week, for example, Broussard was the lone dissenter when the court barred victims of child molestation from collecting monetary damages from a homeowner-liability insurance policy held by their assailants.

Broussard said the ruling would hurt victims by denying them their only real opportunity for adequate compensation to pay for their trauma and medical treatment.

Broussard, of course, was not always in the minority and in several instances he wrote the court opinion in major cases. For example, he was the author of the justices’ unanimous decision upholding the validity of Proposition 103--the insurance reform initiative--while finding also that insurers could not be denied a fair profit. And although he often dissented in capital cases, he wrote the justices’ unanimous decision last December upholding the death sentence in the notorious case of Stevie Lamar Fields, convicted of the rape and murder of a USC librarian during a string of 14 crimes in 1978.