Kennard--Nobody’s Follower : Judiciary: In her two years on the state Supreme Court, she has occasionally deserted the conservative majority and voted with the liberal minority.

Prayer can be barred at public high school graduations. The state civil rights agency should be allowed to award emotional-distress damages to victims of job bias. A condemned killer’s life should be spared because his statements to a psychotherapist were revealed to a jury.

Those are hardly the views one might expect of a former state prosecutor appointed to the California Supreme Court by a conservative Republican governor who campaigned hard against liberal judges.

But in her two years on the state high court, Justice Joyce L. Kennard has often produced the unexpected--charting an independent course that sometimes surprises court observers.

Kennard had been a judge for only three years when she was elevated to the high court by Gov. George Deukmejian in the spring of 1989. Even without an extensive judicial record, it was widely assumed she would align herself solidly with the other Deukmejian appointees who control the court.

To be sure, the 50-year-old Eurasian jurist has voted with the conservative majority in most key cases. But in several notable instances, she has deserted that majority and cast her lot with the court’s liberal minority.

“Of all the Deukmejian appointees on the court right now, she is the least predictable,” said Gerald F. Uelmen, dean of the law school at Santa Clara University. “There is a real potential for her to play a pivotal role (by) staking out a middle-to-left position on the court.”

Kennard herself announced her intention to be an independent voice on the court. Speaking before the California Women Lawyers in San Diego in September, 1989, the court’s only female member assured her audience she was “not a token presence” and said she had already established a “streak of independence” on the court.

Two years later, there is mounting evidence to support her claim:

* Kennard, backed by court liberals Stanley Mosk and Allen E. Broussard, wrote the court’s lead opinion prohibiting benedictions and invocations at graduations. She stressed the nation’s racial and religious diversity and said freedom of religion could flourish when government observed “strict adherence” to the separation of church and state.

Differing with the other Deukmejian appointees, Kennard found that graduation prayer violated not only the federal Constitution’s ban on government establishment of religion but similar provisions of the California Constitution as well.

That view could prove important if, as many expect, the prayer issue returns to the court. The U.S. Supreme Court is to review a separate case in its next term to determine whether prayer at graduations is permissible under the federal Constitution. Even if the federal high court permits such prayer, the state court could still reaffirm its ban if Kennard and at least three other justices agree it violates state constitutional provisions.

* Kennard joined Broussard in dissent when the high court ruled that the state Fair Employment and Housing Commission lacked authority to award compensatory damages to victims of job discrimination. The ruling overturned a $20,000 award for emotional distress to a community college employee who said she was fired for resisting sexual advances by her supervisor.

* Conservatives prevailed again when the court voted 4 to 3 to broaden the ability of prosecutors to use as evidence statements previously made by defendants to a psychotherapist. Conversations between patients and therapists are generally protected as confidential, but there are exceptions when a patient threatens harm. Kennard joined a dissent by Broussard saying that while a therapist’s warning to a potential victim could be admitted as evidence, statements made by the defendant to the therapist should not have been revealed.

Kennard also parted with her conservative colleagues in several other important cases. She joined liberal dissenters when the court ruled that when conflicting ballot measures are approved, no part of the one receiving fewer votes may take effect; she dissented when the court held that under Proposition 103, insurance companies could refuse to renew policies and withdraw from the state without finding another firm to serve abandoned customers, and she objected when the court declared that getaway drivers may be punished as severely as the robbers they help flee.

In capital cases, Kennard has joined the majority in affirming most death sentences. But she voted with liberal dissenters when the court upheld the sentence of convicted killer Charles Edward Whitt, who had appealed on the grounds that he was prevented from telling jurors why he believed he should live. Along with Mosk and Broussard, she also dissented when the court upheld the death sentence of Randy Haskett, saying she believed the judge misled jurors to believe they could not consider Haskett’s mental condition at the time of the crime.

While Kennard’s emerging role as a court centrist may prove important in the long run, UC Berkeley law Prof. Stephen R. Barnett notes that her relative independence is unlikely to change the court’s rightward course in the immediate future. Broussard, one of the two acknowledged liberals on the seven-member court, is set to retire Aug. 31. Republican Gov. Pete Wilson has not yet nominated a successor.

“(Kennard) has not yet developed into any sort of counterweight to the conservative majority,” Barnett said. “And with the prospect of Justice Broussard being replaced with a conservative, her mild form of independence may not make a difference.”

Deukmejian’s appointment of Kennard to the high court drew wide attention, particularly as it focused on the hardships she endured in her youth. Born in Indonesia of a Dutch father and a Chinese-Indonesian mother, she was confined in a World War II internment camp by the Japanese. Later, she lost a leg because of a life-threatening illness. Eventually, she came to America, and with a $5,000 bequest from her late mother and money from part-time jobs, she made her way through college and ended up with a law degree from USC in 1974.

Kennard then joined the criminal division of the state attorney general’s office, and five years later became a research attorney in the state Court of Appeal. Deukmejian named her to the Los Angeles Municipal Court in 1986, and after brief stints on the Superior Court and state Court of Appeal, she was elevated to the state Supreme Court in 1989.

On the high court, Kennard has written majority opinions in some significant cases. She held that municipal officials need not provide details of proposed low-rent public housing projects before seeking voter approval. Kennard also wrote for the majority when the court reversed the perjury convictions in the campaign-finance case of former San Diego Mayor Roger Hedgecock. And with three conservatives dissenting, she wrote a lead opinion restricting the ability of prosecutors to bring second-degree murder charges against the provider of illegal drugs that cause the death of the user.

There is some concern in court circles about the volume of her opinions to date. A study by Uelmen showed that in the year ending March 31, Kennard had written a total of 13 majority, concurring and dissenting opinions, the lowest on the court. Her seven majority opinions were the second-lowest number after the six issued by Justice Armand Arabian, a relative newcomer who joined the court in March, 1990.

Uelmen raises several possibilities for Kennard’s relatively low output: she may not yet be managing the court’s heavy workload; as a “perfectionist,” she spends an inordinate time on her opinions, or, as an independent-minded member of the court, she is not being assigned her share of the important cases by Chief Justice Malcolm M. Lucas.

Uelmen finds the quality of her work generally “very good.” But Barnett says her writing on the high court has not yet matched her performance on the state Court of Appeal. “Her opinions have not been as distinctive and individualized as one would like,” he said.

Kennard declined to be interviewed, but it is generally acknowledged that any newcomer to the court faces a challenging adjustment to its heavy workload and the time it takes simply deciding which of scores of appeals that come in each week are worthy of formal review.

Some who are familiar with Kennard’s work concede she is methodical but credit the justice for freedom from outside influence and attention to organization and detail. “I wouldn’t call her a perfectionist--at least not a snippy or picky person,” said one court source. “But she is extremely interested in the quality of her opinions.”

Janice Kamenir-Reznik of Los Angeles, a former president of California Women Lawyers and a longtime acquaintance of Kennard, says that even though the justice is a former prosecutor, it comes as little surprise when she votes to reverse a death sentence.

“When she does that, it’s because she went through the evidence and applied her view of the law, not any personal agenda,” Kamenir-Reznik said. “It would be very uncharacteristic of her to come to a case with a predetermined position. . . . She’s an independent person who’s not going to be anyone else’s follower.”