Otto Kaus Dies; Former Justice on State High Court

Otto M. Kaus, a former California Supreme Court justice who decried the growing influence of politics on the judiciary, has died after a battle with cancer. He was 76.

Appointed to the state high court in 1981 by then-Gov. Edmund G. “Jerry” Brown Jr., Kaus was considered a moderate on the Rose Elizabeth Bird court when it was under fire from conservatives for overturning death sentences and ruling against corporations.

Kaus--who died late Thursday at his home in Beverly Hills--was one of the court’s most influential but least known members when he retired in 1985, bemoaning the conservative clamor that a year later culminated in the ouster of Chief Justice Bird and two liberal colleagues.

“He was not only moderate, but a man of common sense and pragmatism who I think was caught between his basically liberal inclinations and his reluctance to go along with some of the extreme positions of the Bird court,” UC Berkeley law professor Stephen Barnett said.

Kaus left the bench largely for personal reasons: He had reached retirement age and wanted to live full time with his family in Southern California instead of commuting from San Francisco, where the state Supreme Court is based.

But Kaus also was troubled by the political controversy that engulfed his more liberal colleagues on the court.

“You cannot forget the fact that you have a crocodile in your bathtub,” Kaus said in an interview after he announced his retirement. “You keep wondering whether you’re letting yourself be influenced, and you do not know. You do not know yourself that well.”

During the campaign against the court’s liberals, Kaus warned that their defeat might subconsciously encourage judges to alter their rulings to please voters and urged consideration of an end to state judicial retention elections.

To illustrate his point, he admitted that he may have been influenced by the political climate when he voted with the majority in a 4-3 ruling to uphold the constitutionality of Proposition 8, the so-called Victims Bill of Rights, against a challenge that it violated a state rule limiting initiatives to a single subject.

The 1982 ruling came shortly after the measure’s passage by voters and only two months before an election in which Kaus and two other justices, who also voted to uphold the initiative, were on the ballot. They narrowly won retention.

“There was talk of going after the judges who didn’t vote to uphold Proposition 8,” said University of Santa Clara Law School professor Gerald F. Uelmen. “I decided the case the way I saw it,” Kaus said after he left the court. “But to this day, I don’t know to what extent I was subliminally motivated by the thing you could not forget--that it might do you some good politically to vote one way or the other.”

Kaus was known as the Bird court’s center, respected by both conservatives and liberals in the legal community. He wrote several noteworthy decisions: a ruling upholding a state law that limited compensation for victims suing for medical malpractice and a decision allowing a child, born with birth defects that negligent genetic screening failed to show, to sue for the cost of medical care.

Barnett called Kaus’ rulings “some of the best that have ever been written on that court.”

“They tended to be wonderfully concise, something not typical of that court, and also witty,” Barnett said. “He was exactly what the court needed and has not had since.”

Kaus was a strong believer in judicial restraint, opposed to using the law to accomplish a social or political agenda. “I hate judges who use the fact they have a public forum for expressing opinions on everything from how to diaper a baby to how to execute a squeeze play in the ninth inning,” he said.

Kaus began his judicial career in 1961, when Gov. Edmund G. “Pat” Brown Sr. appointed him to the Los Angeles Superior Court bench. He was elevated to the Court of Appeal in Los Angeles in 1964.

After leaving the Supreme Court, Kaus entered private practice in Los Angeles.

Kaus graduated from UCLA and Loyola University Law School, where he returned in later years to teach. He served in the U.S. Army during World War II.

Kaus is survived by his wife, Peggy, whom he married in 1943, and two sons, Stephen David, a lawyer, and Robert Michael “Mickey,” a journalist.