State Supreme Court Sheds Its Activist Role : Law: Now dominated by conservatives, California’s panel appears less willing to expand people’s rights beyond the protections mandated by the U.S. high court.

For decades the California Supreme Court drew nationwide attention for its pioneering decisions extending constitutional protections here beyond those given all Americans by the U.S. Supreme Court under the Bill of Rights.

Californians were given greater rights in everything from obtaining a government-funded abortion to gathering signatures on a petition at a shopping mall. Some expansions of criminal defense rights under state law often preceded similar federal rulings by several years.

Now, however, those trend-setting days seem to be numbered. The state high court has undergone a complete philosophical shift, with the liberal-activist majority that boldly asserted new rights under Rose Elizabeth Bird and other chief justices being replaced by more cautious and conservative jurists led by Chief Justice Malcolm M. Lucas.

As the nation marks the 200th anniversary of the federal Bill of Rights today, many legal experts see little prospect for any more of the expansive use of the state Constitution that marked the court of the past. The state court, they expect, will look for guidance to the U.S. Supreme Court--itself more conservative now--and avoid declaring new rights on its own.

“I think the California Constitution that was used aggressively for years has been set back on the shelf to gather dust and lie dormant,” said Ronald K. L. Collins, a law professor at Catholic University of America in Washington, D.C., and an authority on state constitutions. “The California Supreme Court is going to be the tail on the federal kite.”

Civil libertarians, who enjoyed victory after victory when the state court was led by liberals, acknowledge concern--but say they are far from giving up their fight.

“The Lucas Court seems somewhat cautious about extending state constitutional protections, but it’s still too early to tell for sure,” said Margaret C. Crosby of the American Civil Liberties Union of Northern California.

In pivotal upcoming cases, the Lucas Court will get the chance to signal its intentions in the rights arena. Several upcoming cases raise far-reaching state Constitutional issues, among them the right to privacy when it comes to drug testing and abortion rights.

The justices are set to decide whether the state right to privacy bars the National Collegiate Athletic Assn. from requiring college athletes to submit to tests for steroids and other drugs. The ruling also could determine the legality of drug tests for privately employed workers as well.

A state Court of Appeal, in the first ruling of its kind, last year upheld claims by Stanford University athletes that mandatory tests unlawfully intruded on their personal privacy. The NCAA, which has required tests nationwide since 1986, argues the testing is a minimal intrusion and that if the appellate ban is upheld it could force an end to the only effective means of combatting drug abuse by athletes.

Early next year, a San Francisco Superior Court judge is expected to rule on the constitutionality of a 1987 law requiring unmarried minors to get parental or judicial consent for an abortion. Whatever the decision, the issue is almost certain to reach the state high court.

The Bird Court in 1981 upheld the right of indigent women to state-funded abortions, recognizing a broad guarantee to abortion under the state constitutional right to privacy. The Lucas Court since then has let stand appellate rulings rejecting legislative restrictions on state-funded abortions--but has not yet ruled directly on abortion funding or other abortion issues.

In another case, the state high court held earlier this year that religious invocations at public high school graduation ceremonies were unlawful under previous U.S. Supreme Court rulings.

But if the federal high court decides, in a separate case now under review, to permit graduation prayer, the question will likely be revived in the California courts. The state justices could then be asked to rule whether such prayer is barred by provisions of the California Constitution prohibiting government establishment of religion.

In the area of criminal defendant’s rights, the state Supreme Court has already agreed to decide whether to abandon a long-held state doctrine mandating the reversal of any conviction in a case where an involuntary confession was used as evidence.

The U.S. Supreme Court, in a ruling earlier this year, said that under the federal Constitution, the improper use of such a confession can be viewed as “harmless error” and a conviction upheld if other independent evidence supports a verdict of guilty.

The state high court in the past has often asserted what is known as the doctrine of “independent state grounds” to provide individual rights beyond those mandated under the U.S. Constitution.

A widely cited example of the doctrine in use is a 1979 decision upholding the right of student activists to circulate petitions at a privately owned shopping mall in Campbell. In 1980, the U.S. Supreme Court, in an opinion by William H. Rehnquist, who was then an associate justice, ruled that while there was no such federal right, California and other states were free to grant the right under their own constitutions.

In another example of the doctrine of independent state grounds, the state Supreme Court has invoked the California Constitution to bar the lending of public school textbooks to parochial students--a practice that is permitted under U.S. Supreme Court decisions. The state court has also struck down zoning ordinances limiting the number of unrelated people in single-family dwellings.

Several other states have joined California in asserting greater judicial independence. Collins reports that since 1970 there have been more than 700 state court decisions in the United States establishing rights beyond those required by the U.S. Supreme Court, in areas ranging from abortion funding to equal spending for public schools.

The doctrine, however, is not without its critics, who say its widespread use can cause confusion in already-complex areas of the law. Further, critics note that the doctrine effectively functions as a one-way street, extending new rights to criminal defendants or political activists in ways that may advance a liberal agenda but do little to promote conservative causes.

On the state Supreme Court, Justice Stanley Mosk has long championed the independent use of the state Constitution. But now Mosk is the lone acknowledged liberal on a conservative-dominated court led by Lucas, a onetime federal judge who in past rulings has criticized using the state Constitution to expand on federal rights.

Still, last December the justices struck down part of a 1988 criminal justice initiative that would have required California courts to follow more restrictive federal decisions in applying 12 constitutional rights of criminal defendants.

That decision heartened civil libertarians hopeful that the Lucas Court will continue to uphold the doctrine of independent state rights. “The court told us in that decision it was proud of the tradition that has been established in California,” said the ACLU’s Crosby. “It was very encouraging.”