State High Court Steering a Pragmatic Legal Course : Justice: Jurists’ liberal predecessors often sought to set broad doctrines. This tribunal instead stresses results.

The California Supreme Court, for decades in the vanguard of activist state courts around the country, is now widely regarded as more of a follower, disinclined to stray far from the mainstream.

Seven years after losing its longtime liberal majority, the Republican-dominated court has moved to limit the rulings of its predecessors, often to the advantage of business, and earned a conservative, but not extremist, reputation.

From the efficient, imposing Chief Justice Malcolm Lucas to the fiercely independent and intense Justice Joyce Kennard, the court has emerged as a pragmatic panel more intent on obtaining results than in establishing broad new legal doctrines through powerfully written opinions.

“A difference between this court and past courts is the lack of somebody who has a great intellectual interest in the law,” said Michael Willemsen, an appellate attorney who previously worked for the high court. “This is much more a practical-oriented court.”

The justices, who meet year-round in a rented downtown state office building here, affirm a greater percentage of death sentences than any state court in the country. They also tend to follow the lead of the U.S. Supreme Court, rather than grant more rights under California’s Constitution.

“If there is any pattern,” said Gerald Uelmen, dean of the University of Santa Clara Law School, “it is to limit recovery by injury victims, to offer more protection to insurers, to offer a more favorable climate to business and to uphold death penalty judgments.”

Statutes tend to be interpreted literally, with the justices appearing somewhat reluctant to go beyond the language written by the state Legislature--except if a meticulous reading would interfere with the intent of a voter initiative.

Instead of overturning lots of decisions made by its liberal predecessors, the seven-member court often just restricts the impact of such precedents by carving out major exceptions to them, analysts say.

The court has a solid conservative majority, presided over by Lucas, who with his grave manner and white locks appears as though he were selected by Central Casting. Voting with him in most cases are Justices Armand Arabian, Edward A. Panelli, Marvin Baxter--all appointees of Gov. George Deukmejian--and Ronald George, who was named by Gov. Pete Wilson.

Kennard, the only woman on the court and a Deukmejian appointee, has been the court’s biggest surprise. Expected to be more conservative, she frequently votes against the five-member majority, dissenting along with liberal Justice Stanley Mosk.

Although conservative, the court tends to be more pragmatic than ideological in non-criminal cases. It has made it harder for people to sue and recover damages from business but has not eliminated those rights altogether. The court, for example, held that the city of Los Angeles could be forced to pay damages to a woman raped by an on-duty police officer. The 1991 ruling substantially expanded governmental liability for crimes by peace officers.

“The pendulum swung to one extreme in the (Rose) Bird court,” said a state Court of Appeal justice who spoke on condition of anonymity, “and now it’s swinging back the other way. Hopefully it will come to rest in the middle where it belongs. But I don’t think this court has gone as far to the right as the predecessor court went to the left.”

Indeed, lawyers on both sides of issues--except in criminal cases--generally can find court decisions they like.

A Southern California attorney for developers praised the high court for being more sympathetic to property rights than its predecessors. For instance, the court in 1990 upheld local approval of a large Santa Barbara beachfront development and warned that regulations should not be used to delay projects needlessly.

Although critical of the court, a Northern California attorney who represents environmental groups cited one of the court’s environmental decisions as “excellent.”

In the 1988 decision, the court held that before approving a new development, a public entity must disclose all its potential impacts and less harmful alternatives.

“They tend to be somewhat unfavorable to us overall,” said environmental attorney Joseph Brecher of Oakland, “but nowhere near as bad as the U.S. Supreme Court, which has killed us over the last six or seven years.”

Indeed, appellate attorney Kent Richland said he has been surprised that the court is not more predictably pro-business in civil cases.

“Here you have a court that was almost completely appointed by Republican governors,” the Beverly Hills lawyer said. “Yet you have these cases come along where the court has announced rules that are not necessarily unfavorable to parties seeking relief against business.”

In death penalty cases, however, the court is far easier to predict.

It repeatedly upholds death judgments even in cases where there have been marked errors by trial courts, such as inadequate representation by a lawyer.

By finding such errors harmless, the court has said the jury still would have found the defendant guilty and sentenced him to death even if the errors had not occurred. It is a subjective judgment that many defense attorneys contend is influenced by the court’s pro-death penalty stance.

“I think one would say it has to do with the philosophy of the justices that may be overriding what is in the record,” said Palo Alto appellate attorney Gerald Z. Marer. “This has a good deal to do with why lawyers are not willing to handle death penalty appeals in California--because they know they have very little chance of having any success.”

The court affirms more than 90% of death sentences, which the high court must by law review. That contrasts with affirmation rates of about 70% in Georgia, Texas and Florida, the other big death penalty states.

The court’s defenders say California upholds more sentences because defendants in California tend to get fairer trials and the errors are not as egregious.

“Lawyers are used to it the way it was before, where everything was very, very technical, particularly in death cases,” said another California Court of Appeal justice. “All the i’s had to be dotted and t’s crossed in a way that appeared nobody could do it.”

The kinds of error that the high court has excused as harmless are illustrative of the court’s attitude in criminal matters. For instance, the court upheld a death sentence even though the prosecutor, citing biblical passages, had told the initially divided jury that sending the man to his death would be God’s work.

Following the lead of the U.S. Supreme Court, the California court also has found that coerced confessions do not necessarily compel reversal of a conviction.

Deputy Atty. Gen. Dane Gillette said the court is simply following, to some extent, the lead of the U.S. Supreme Court.

Although Justice Sandra Day O’Connor two years ago criticized California’s “cursory review” of a capital case and called it “clearly insufficient,” the highest court has not reversed any of California’s affirmations of death sentences.

“I think the California Supreme Court has taken a very practical and reasonable and realistic look at trials,” said Gillette. “They look at the overall results of the trial and focus on whether the defendant received ultimately a fundamentally fair trial.”

Justice Panelli, who professes to be no particular fan of the death penalty--if voters abolished it, he said, “it wouldn’t bother me in the least”--acknowledges that the violent nature of the death cases can be powerful.

“You spend a lot of time on them, and they are also very horrible,” Panelli said. He said he often feels sympathy for his staff attorneys--particularly the women, he said--who must carry thoughts of the awful violence with them as they walk the streets.

Not surprisingly, liberals tend to assess the court more negatively, conservatives more favorably.

From a liberal former Supreme Court justice: “This has been a court that has looked after the interests of the upperdog. . . . None in the majority strike me as judges really interested in theory and concept and evolution of the law.

“They are what we call journeyman judges. They do a good job, write the opinions in an understandable way, and I don’t know we have the right to expect much more.”

From Encino lawyer Ellis Horvitz, who represents insurance companies: “I have the feeling we are on a level playing field with this court. If I have a really good argument and a really good position to present, I can go before this court with a feeling of confidence.”

Although the court is widely regarded as pro-business, several attorneys who practice before it reject that label.

“Theirs is more of a conservative economic attitude,” said Ventura appellate attorney Wendy Lascher, who represents both plaintiffs and defendants before the court.

Past California courts were considered greater leaders in the legal arena in large part because they were more liberal, said UC Berkeley law professor Stephen Barnett.

Still, he said, “the majority of the present court, leaving out Justices (Stanley) Mosk and Kennard, is undistinguished by intellectual stature or judicial flair.”

Instead of a “biting intellect,” said an appellate attorney who represents corporations, the majority has a “basic common sense and a sense of practicality, which is equally important.”

Kennard, 52, is widely described as a thoughtful, deliberate judge who spends considerable time on her opinions rather than delegating most of the work to staff.

Mosk, 81, appointed in 1964 by former Gov. Pat Brown, is regarded as the most liberal member of the court and one of its finest writers, a sharp-tongued justice who some attorneys dread being challenged by during arguments. Baxter, 53, is usually ranked as the most conservative.

Chief Justice Lucas, 66, by all accounts is a strong administrator. Known for his humorous quips during arguments, the chief justice also is credited with helping to restore public confidence in the court after the Bird era.

Court analysts suspect that George, 53, is being groomed for the chief justice post when Lucas eventually steps down. A former prosecutor, George is considered the most prosecution-oriented of the justices.

Arabian, 58, who has an unpredictable streak and is considered a victim’s advocate in rape cases, and Panelli, 61, who is considering retiring from the court next year, are usually described as slightly more moderate than the other conservatives.

“The majority of the court is conservative, but not extremely so,” said UC Berkeley’s Barnett. “There are no justices Scalia or Thomas on the California court. The conspicuous problem with the present court is that it has a majority of five justices who vote in virtual lock step, none showing any significant independence or thoughtfulness or judicial distinction.”

But Arabian insists that the justices operate as seven independent law firms. “This is a pragmatic court,” he said. “We are not pie-in-the-sky thinkers. Our feet are on the ground.”

Some analysts believe that the court, perhaps painfully aware that previous justices were dumped by voters, will go to great lengths to uphold voter initiatives and to stay in line with majority thinking.

Others say the court is just in step with society.

“They want to be in the mainstream,” said Court of Appeal Justice Howard B. Wiener. “This high court does not want to be on the cutting edge.”