Stanley Mosk, State’s Senior Justice, Dies

Justice Stanley Mosk, the influential, widely acclaimed and contentiously independent senior member of the state Supreme Court, died Tuesday. He was 88.

The longest-serving member in the court’s 151-year history, Mosk died unexpectedly at his home in San Francisco, according to a statement released by the court.

Mosk was in his office working Monday and experienced chest pains during the day, his grandson said. The only Democrat on the court, Mosk issued his last opinion June 14.

He spent 37 years on the court during five decades as a governmental official in California, which included an influential stint as state attorney general. Mosk wrote a total of 1,688 opinions over his career: 727 majority rulings, 570 dissents and 391 concurrences, according to UC Berkeley law professor Stephen Barnett. These included dozens of landmark rulings that left a unique and far-reaching imprint on civil and criminal law.

A vigorous advocate of individual liberties, Mosk won national recognition for his trailblazing legal theories and clear, forceful writing. He was a leader in a growing movement among state courts around the country to use their own constitutions to establish individual rights beyond those required under the federal Constitution.

“Stanley Mosk was a giant in the law. His legacy will continue to serve the people of California for many years,” Chief Justice Ronald M. George said in a statement Tuesday.

“We at the court will miss his wisdom and his wealth of experience.”

Gov. Gray Davis, in Washington to testify on the state’s energy crisis, called Mosk’s death a “sad day for all Californians.”

“Justice Mosk devoted his entire career to public service. We are all the beneficiaries of his extraordinary wisdom and foresight.”

Davis ordered flags atop state buildings, including the Supreme Court and Court of Appeal, to be lowered to half-staff in memory of Mosk.

With the passing, Davis will have an opportunity to make his first appointment to the state Supreme Court. Byron Tucker, a Davis spokesman, said the Democratic governor will “find the most qualified person possible.”

“The governor will be very thorough and thoughtful,” said Tucker. “His primary goal is to find the most qualified person possible.”

Goal of Holding Longest Term on Court

Mosk, once a vigorous interrogator during oral arguments, had grown reticent during recent court hearings. Earlier this month, in a hearing on a landmark right-to-die case, Mosk did not ask a single question.

He also had grown more feeble. Much to the relief of his fellow justices, he took up a cane several months ago. When he and the other justices entered the courtroom for arguments a few weeks ago, Associate Justice Marvin Baxter held Mosk’s swivel chair still before Mosk sat down.

His ambition in his later career was to become the longest-sitting judge on the state high court, a feat he accomplished Dec. 26, 1999. He said at the time that he would remain on the court for at least another couple of years.

During his last retention election in 1998, Mosk worried that his age would become an issue. It did not. He was overwhelmingly reconfirmed, in part because of his political shrewdness and court record.

Some sources on the court said Mosk suffered occasional lapses due to his age. “But his 90% is more than most people’s 100%,” one of the sources said when Mosk reached his goal.

His recent written rulings had generally remained strong. An opinion Mosk wrote for the court earlier this year about whether celebrities must be compensated when their images are used in artwork was praised by several legal scholars. Mosk sought to balance the property rights of the famous with the 1st Amendment rights of artists in the ruling.

Mosk was the most liberal voice on the court during the last decade, although in key cases he opposed affirmative action and tried unsuccessfully to uphold a state law that required teenagers to obtain their parents’ permission to have an abortion.

When the court was headed by retired Chief Justice Malcolm Lucas during the 1980s, Mosk and Justice Joyce L. Kennard were dubbed the “odd couple.” The Democrat and the Republican often dissented together in opposition to conservative rulings.

Under Chief Justice George, the court has moderated and Mosk frequently could find three other justices to take a left of center position on cases.

Adjusted to Political Winds

Mosk was savvy about public opinion. Although he personally opposed the death penalty, he voted to uphold many death sentences because it is the law. Whereas conservative members of the court enraged the antiabortion lobby and prompted a move to unseat them by their votes to reject the state law on parental permission for abortions, the most liberal justice was widely praised by conservatives because of his opposite stance.

As Berkeley’s Barnett put it, Mosk saw “the way the political winds were blowing and adjusted his positions accordingly.”

Mosk’s long career began in 1939 when, as a young Los Angeles lawyer, he was appointed executive secretary to Gov. Culbert L. Olson. He was appointed as a Superior Court judge at the age of 30. As a judge, in 1947, he declared racially restrictive real estate covenants unconstitutional, before the U.S. Supreme Court did so.

Later, he was elected state attorney general, where his wry dismissal of members of the right-wing John Birch Society as “little old ladies in tennis shoes” became one of the most widely quoted political put-downs of the day.

As attorney general, he established a civil rights section, promoted police training and brought landmark antitrust and consumer actions, as well as arguing for California water rights before the U.S. Supreme Court.

Appointed by Democratic Gov. Pat Brown to the state Supreme Court in 1964, Mosk was to play a key role in the liberal bloc that dominated the court for decades, writing many of its most significant rulings.

In 1987, after a conservative majority abruptly emerged following the defeat of Chief Justice Rose Elizabeth Bird and two other liberals in the bitterly fought 1986 election, Mosk began to find himself increasingly in the court minority. But he remained one of the court’s most productive members and still wrote many important rulings. In numbers of opinions written, even in his 80s, he continued to be a highly productive member of the court.

On other fronts, Mosk relished appearing in public before legal groups where he made thoughtful and often witty addresses on the law. A talented and prolific author, he wrote law review articles that ranged from a sober analysis of trends in state constitutional law to a lighthearted look at the expense accounts of James Madison.

As a vigilant protector of the English language, he once chastised his colleagues for using the phrase “in the ballpark,” rather than “reasonable range,” in a court opinion on liability suit settlements. “While it may be accepted in current vernacular, I suggest it may puzzle the reader of this text 25 or 50 years from today,” Mosk wrote of the justices’ casual use of the term.

Mosk’s court opinions established sweeping changes in the law, ranging from new guarantees for criminal defendants to enhanced governmental protection of the environment to widened ability to sue for personal injury.

A 1978 decision he wrote barring prosecutors from using peremptory challenges to remove jurors for racially discriminatory purposes was the forerunner of a similar ruling by the U.S. Supreme Court in 1986. A 1972 opinion by Mosk extended the restrictions of the California Environmental Quality Act to private developers, a major victory for environmentalists. In 1980 he issued the court’s opinion allowing victims of the drug DES to sue all makers of the drug, on the basis of their market share, when the specific manufacturer was unknown to the victim.

Another ruling in 1978 established the right of criminal defendants indicted by a grand jury to a preliminary hearing in open court, a forum providing them with much greater ability to challenge charges against them. A 1979 decision held that a disabled parent could not be denied custody of a child solely because of a physical handicap.

Mosk was also known as a judicial maverick, a somewhat unpredictable individual with strong and sometimes controversial streak of independence.

In 1976, in the case of Allan Bakke, an unsuccessful white applicant to the UC Davis Medical School, Mosk wrote the court opinion holding unconstitutional a quota-based admissions program favoring minorities over whites. Later, when he spoke at law graduation ceremonies at the school, he was met with pickets and about one-fourth of the graduates walked out in protest.

Staunch Opponent of Ethnic Quotas

Mosk’s vigorous opposition to racial and ethnic quotas--which he saw as unfair and unjust no matter who they favored--drew him into another dispute in 1981. In an unusual action, Mosk, at the request of aides to state Sen. John G. Schmitz, a conservative Republican from Corona del Mar, drafted a proposed constitutional amendment to bar quotas by government agencies and public colleges.

The move drew complaints from minority and women’s groups as conduct improper for a judge. Later, the state Judicial Performance Commission cleared Mosk of any wrongdoing, but issued an implied reprimand by noting that there were actions by judges that, while not unethical, “run the risk of appearing insensitive and lacking in discretion.”

For all of his strong views, Mosk was not afraid to change position on a legal issue. He once wrote a concurring opinion in a tax case quoting a number of judges who had found it necessary to change their minds--one of them, U.S. Supreme Court Justice Wiley Rutledge, who wrote in 1949: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

Mosk’s willingness to reconsider an issue sometimes caused critics to complain--usually in private--that he was merely bending his views for political reasons.

Often cited was an instance in which Mosk first was among the majority in a controversial 1978 ruling that effectively overturned the “use a gun, go to prison” law by allowing judges to still impose probation on convicted defendants under another statute. Later, the court granted a rehearing, and upon reconsideration Mosk voted with a new majority upholding the law.

The case, known as People vs. Tanner, had been at the center of charges that the court had delayed potentially explosive rulings until after the election to avoid jeopardizing Bird’s confirmation. A public inquiry was held by the state Judicial Performance Commission, which found insufficient evidence to support the allegations.

Later, Mosk joined in a 1983 ruling requiring that in felony murder cases, before a death sentence may be imposed a jury must specifically find the defendant intended to kill his victim. The decision threatened to result in the reversal of dozens of death judgments. But four years later, with Mosk writing the majority opinion, the newly aligned court overturned the 1983 ruling, citing new rulings by the U.S. Supreme Court on the issue and its own revised view of the state death penalty law.

State Interpretations of U.S. Constitution

Many of Mosk’s opinions over the years reflected his devotion to the doctrine of “independent state grounds”--the theory that the federal Constitution provides but a minimum standard of individual rights from which states can build through interpretations of their own constitutions.

In 1976, Mosk wrote the opinion for the court barring the use of improperly obtained confessions to challenge the truthfulness of a defendant who later testifies at trial. While the U.S. Supreme Court had approved such use, the California court, invoking the state Constitution, could not approve the practice, Mosk said.

Later, the newly aligned and more conservative state court, citing provisions of the 1982 anti-crime initiative, overturned the 1976 ruling.

Mosk drew wide recognition for his advocacy of the doctrine, but that, too, was not without its critics, who charged that he and other liberal jurists had simply asserted this new states-rights theory as judicial camouflage while they twisted and strained the law to achieve their own liberal social goals. As implemented by Mosk and his cohorts, these critics said, the doctrine becomes a “one-way street,” where a state court can be more liberal, but not more conservative, than the U.S. Supreme Court.

Mosk, who was born in San Antonio, attended the University of Chicago as an undergraduate and law student before finally receiving his degree in law at Southwestern University in Los Angeles in 1935.

Serving four years as Gov. Olson’s executive secretary, 15 years on the Superior Court and six years as attorney general beginning in 1958, Mosk also was for a time the Democratic national committeeman from California, and was an early supporter of John F. Kennedy for president.

When he was elected attorney general, he was the first adherent of the Jewish faith to be elected to statewide office in California.

But by 1964, he had become weary of politics--particularly the need to raise campaign funds--and after considering a run for the U.S. Senate, he dropped out of contention when Pat Brown backed Alan Cranston.

Brown then asked Mosk if he wished to join the state Supreme Court. After thinking about it a few days, he said yes, and later said he had no regrets about his decision.

Found Political Life Fascinating

“I must confess that political life is fascinating and exciting,” he said in an interview with The Times in August 1989. “You meet some wonderful people you wouldn’t otherwise come in contact with. I remember crawling under a locomotive in the Southern Pacific shop in Roseville to shake hands with a grimy engineer. I found that sort of thing really fun.”

“But the part that was not interesting anymore was fund-raising. I found myself going to receptions or cocktail parties and looking at everybody with a dollar sign over their heads, wondering what kind of contribution they might make to a future campaign, and I began to really dislike that sort of thing. . . . The luxury of being in public life [on the court] without having to do any fund-raising is really rewarding.”

Mosk served on the state high court when it was perhaps at its zenith, when under Chief Justices Roger J. Traynor and later Donald R. Wright it was widely recognized for its professional craftsmanship and its bold precedents in civil and criminal law.

But in 1977, when Wright stepped down, Gov. Jerry Brown appointed Bird as Wright’s successor, and in the ensuing years, a series of controversies erupted that did great damage to the court.

The nomination of the relatively inexperienced Bird, who had never served in judicial office, dashed the hopes of Mosk and his supporters who had expected him to be named to the post.

The public hearings in the Tanner case served to reveal the conflicts among the justices, dealing more damage to the court. Finally, in 1986, in an unprecedented action, the voters turned Bird and two other liberals, Justices Cruz Reynoso and Joseph R. Grodin, out of office. Mosk and two appointees of Gov. George Deukmejian--Malcolm M. Lucas and Edward A. Panelli--were confirmed easily.

In the early stages of Bird’s tenure, there were continued reports of personal strain between Bird and some other members of the court, including Mosk. Such reports were heightened, for example, when Mosk refused to accept an award from a lawyers group that had endorsed Bird’s confirmation in 1978.

But later, the justices appeared to try to minimize their personal differences for the sake of the court as a whole.

Mosk is survived by his wife Kaygey, whom he married in 1995. His first wife, Edna, died in 1981. Other survivors are his son Richard, a Los Angeles attorney who was flying back from The Hague where he was serving as a judge with the Iran-U.S. claims tribunal; and two grandchildren, Julie Morris of Culver City and Matthew Alan Mosk of Annapolis, Md.; and two great-grandchildren, Noah Morris and Jenna Morris, also of Culver City.

Services for Mosk will be private. The Supreme Court will hold a memorial later this year.

*

Times staff writers Caitlin Liu and Dan Morain contributed to this story.