News Scrapbook 1986

Po itics I and the • California Bencl1 ird is voted o.it, will tt , ff hain r Lion, threatenin m freedom of judg t make independent de i i ?

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ions. which create precedent fJ future decisions. South Africa Pnme Minister P.W Bo- tha enacted "state of emergency" laws and accompanying regulations that in- creased the power of the police to almost life-and-death control over the black ma- J0nt) population. Botha failed to present the mea ures to Parliament in order to avoid embarrassing public debate. The couru. noting under South African lav. that Botha was required to present the measures to ?-arhament. declared many of the "emergenc) laws·· 10 be illegal. In fact. tn South Africa today there 1s a movement to give even more power to the couru.. which would take the tough deci- sions on apartheid out of the hands of elected officials. The politicians seen~ a

1hr extreme displeasure of President Thoma, Jefferson Believing Congress should make such decisions, Jefferson. had he had the power, probabl 1 would have removed Marshall 1mmediatel; from the Supreme Coun. Thi first maJor declaration of indepen- dence b) the American jud1c1aT). which created for the couru their own pov. r 1ew, wa 11self part!} a pohti~al a t. A Harvard Lav. School Profe sor Laurence Tribe has noted in hts book, American Cons1i1u- riona/ lo", "No doubt Marshall had a personal mterest in increasing his ov.n po"-er. No doubt al o, Mar;hall's politics were relevant . . the idea that legislatures \I.OUld ignore principle m order to plea e ontrollrng ·facuon,· v.a. v.idely shared. but the idea that courts were ,1milarly po- lmcal "'as not )Ct current (although it would be within a few decade~):' Fonuna1ely, the~e hard f~cL, of hfe have never dimmed our hope that Judges will Jive up to our high expectation. "An inde- pendent Judiciary," say Profes or Rohen Simmons of the University of San Diego - School of La\l.. "is the crowrung glOT) of our legal system. And generall). we have been able to obtain 1t." The a,erage citizen. although \I.ell aware that judge, are onl) human, still cx- pec15 that when he goes 10 coun for a di• vorce or a traffic ucket, he will receive a fair hearing before a Judge who is free from influence and isn't womed that a wrong decision will alienate a particular polrt1cal action commmee (PAC). harm- ing the judge's reelection chances We all expect a judge to be neither a Republican judge nor a Democratic Judge. but a fair and capable Judge. base in th d tr ofJU i, r

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The tate. Con~111u11011 ref'oectl- tht fact Th framer; described die Leg- 1 lature m An1 le I, the Execut1•e Br .. n:h in Amcle Il a d th Jud1c1af} m An le JJI, and ga~e each of the e coequal br.tnche~ che.: and balance o,er e..ch other If the) believed an) one of the three could p 1~1 ! hone t and re,1st the im- pube to be corrupted by poltti al powt.'T, tht:y would hav put it in charge of the other two eloped between the President and th courts The Con. 1irut1on failed to state who-.e JOb tt "'as to decide if a partic- ular p1e.:e of legis at1on wa~ rn conform· it) w1th the ConstJtuuon In the famou ca_\e of Maroun i. Madi on (1803). Chief Jusu~e John Mar!,hall decided-with no precedent to guide him-that thi deter- minau n would be made b) the couns. to nitet' o sooner w1 the Con. titution in t of a lengthy senes of force than the fi c(lnf11-t d

EIIWI . McJ:t'fl:,1e u a Sq,) D,ego al/or• llt'). i11 pm-at,• pro.r,cr Mlh the la" offices of C, Bradln Hal/en McKrn:,,r " a groJUJJte oj11,e Unn·um of Cal1ftm1ia at lm Angrlei Sch,,;,/ of la" ano rtce,~ed a Mastu of Arrs degrer ,n po/weal iClt'nce from 1h Um,·ers10 of Sou1hrm Califor- nia Beforr eruenng pma1r prornce he sprn1four. ars a.s a drpur) dmnc1 arror- nn in rht Sa,. Diego Counn D1s1nc1 Allome) 's Offitt Michael Lu Bmdtr rretntd a Ju,. dtgru from lht Unil'l'TSlf>. of 5'..n D,rgo c":!!!f ojlo» ivuiTsaSan Dugo a/lomn 111 pmolt pramu Ht ,s a funner 1ourrw/111

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pr:£ realize they cannot solve the problems and ,tay m power. But a non-elected JUd1- c1ary could do so. As a result, a bill of rightS giving the couns the power ofjud1- c1al revie11, is fast gaining uppon. In South Africa. many. such JS \fims- ter of Ju 11ce Hendrik J. Coe!See. feel that a truly independent Judiciary. ,uch as we are in danger of losing here. could help ~olve many of South Africa's problems. [t would help pre,ent charges being brought against innocent people who are then Jailed-or 11.orse-without trial. The coun v.ould be able to stand for human rights against an oppre sive government. The question to ask is this: Would Califor- nia be living in a state of apanheid if the Supreme Coun had never declared Prop- osition i4 unconstitutional because the JUSlices 11,ere fearful of public sentiment m the next election? THERE IS a great deal more at stake than 11,he1her Rose Bird ,tays on the bench for another I'.! years. Bird and her supponers have ,aid repeatedly the death-penalty issue is a highly charged emotional red herring. They claim she and her fellow jusuces consistently have stood for the righ15 of the poor, minorities. women and consumers. Many of their most imponant decisions have e11panded the rights of citi- zens against large corporations, insur- ance companies and in tort ca·ses for personal-injury remedies.' "Governor Deukmejian," says Sim- mons. "has repeatedly stated that Rose Bird and her colleagues are anti-business. Yet, he has not been able to name a case on v.h1ch the justices took an anti· business stance." However, a recent "v.h1te paper" prepared by the presti- gious and highly respected Los Angeles law firm of O'Melveny and Myers, and 1s ued by Crime Victims for Court Re- form. attempted to answer Professor Sim- mons' quesuon. The 26-page report li,ted more than 20 decisions in which the authors claimed Chief Justice Bil"d and fellow jus~ces Grodin and Reynoso con- sistently ha.d voiced anti-business senti- menl5. Justice Grodin reacted angrily. stating that 14 of the cases were issued before he joined the Supreme Coun and II before Ju\tice Reynoso was appointed. [n add11ion. there were substantial fac- tual inaccuracies. For example. in one ca,e, Seaman's Direcr Buying Service ,:

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Sran,lard Oil. the whne paper accused the coun of upholding a JUT} verdict of pu- nitive damages when. m fact. the court reversed on that issue and set aside the punitive damage award. Many in the legal field are asking ques- tions: How did attorneys from such a highly respected law firm, which hires only the top law students from the top na- tional law schools, make such obvious and egregious errors? And why \I.OUld the Crime Victims for Coun Reform distrib- ute a research project that does not dis- cuss a single criminal case'? The cases discussed were in the areas of tax, torts, contracts, real propeny and political re- appon1onment. A HIGH-RANKING local Republican points out, "If you look at who is really running the campaign against Bird, Reynoso and Grodin. it becomes clear George DeukrneJ1an wants to determine the l1a\or of the Supreme Coun. If he un- seal5 all three, he will be able to choose, II totaled. six of the coun's justices. In San Diego, Sheriff John Duffy, Tom Stickel and Tom Hawthorne arc running the local movement. All are in the Deukmejiarr kitchen cabinet. On the state le,el, Bill Robens is calling the shots, and he is an old friend and adviser to Deukmejian. The Cnme Victims are merely trotted out m front of groups and used to raise money." In addition, there is widespread senti- ment that 1f Bird is defeated this election, it may mark a rurning point for judges as actors on the California political stage. For the first time in recent memory, a Su- preme Coun justice has been forced to raise substantial sums of money to stay in office. As of late August, Bird had raised SI.I million. Bui her opposition, the Californians to Defeat Rose Bird and the Cnme Victims for Court Reform, together have assembled a v.ar chest of S4 6 million. In her campaign , Bird has been sty- mied by the Canons of Judicial Ethics, which say she cannot go 10 ,;pecial- interest groups to make pleas for financial support-.and she cannot promise to rule a particular 11,ay to sway public sentiment. In short. she cannot make campaign promises, a seemingly necessary compg- nent to all political elections. "We have a judge "'ho is limited in what ,he can do in an election campaign,"

says Steve Glazer, a Bird spokesman. ·•She does not feel it appropriate for her to go to pecial-interest groups and make appearances for their support." Bird's supporters have attempted to compensate for these limitations by form- ing the Independent Citizens Committee to Keep Politics Out of the Couns, headed by former governor Edmund G. Brown. Harold Meyerson, the committee's exec- uttve director, said recently in the Los Angeles Daily Journal. "The justices are in a bit of a mess. They can't talk about the decisions the court has rendered. But we can and we will. The justices are forced to fight with one hand tied behmd their backs." THE FUTURE looks grim for Bird. Al- though it looks like all other justices will be retained, a recent Field poll said 57 percent of the voters wanted her out of of- fice. This was true even though 52 percent believed she had the integrity and qualifi- cations to s11 as a Supreme Court chief justice. The public made its decision on the basis of her aJleged softness on crime and criminals, and on her obvious ideo- log1cal viewpoint. If Bird does lose, which looks likely, she will be the first California Supreme Court justice to lose a retention election. If the relatively unknown Reynoso and Grodin go down with her. despite their low profiles it will mearthat they lost due to guilt by~- sociation., 1 Ob ervers are asking several questions: Will thisfelection sel a precedent for the future? Will the traditional, noncon- troversial. nearly automatic retention elections give way to hotly contested campaigns on such ideological grounds as abortion, race relations and sexual equality? "It's all'very depressing to watch," says Dr. Larry L. Berg, professor of political science at the University of Southern Cal- ifornia and director of its Institute of Poli- tics and Government. Berg is a leading authority on poliucs and the j udiciary and has been studyjng judicial elections and their financing since the mid-l970s. In February 1985 he conducted a public opinion survey that showed that, while Bird was trailing. there was a large un- decided vote. and the respondents by a t11,o-to-one margin .:alued an independent judiciary over one that was account1ble to CONTINUED ON PAGE 240 /@

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"If thL attack [ on Bird] wir1S, every trial judge in California will be conet·rned, when he makes a decision, about its effects on reclect1on," ay Professor Robert Simmons of the Univer it) of San Diego School of Law.

BY THE TIME you read 1h1 W1ll1am Rehnqui,t undoubtedly will have been confirmed b) the United States Senate a, the new chief JU ticc of the Unaed Staces Supreme Coun. H1 confirmation hear- ing, were highly publicized ordeal for him-not becau c of h1~ legal ability, which i beyond question-but olely because he 1 a con ervative Hts chief opponent. Senator Edward Kenned} fD-Mass ) lated for the press that Rehnquist 1, " extreme to be Chief Justice" Univer;it 1 of V1Tginia Professor Henry Abraham, author of Ju.mces ano Presi- dems. as quoted ma recent UPI story, said of the oppom1on 10 Rehnquist and An- tonin Scalu1, "If one approaches these m- d1vidual nominee strictly from the point of view of ment, of quahficauon . they should be tota11 1 noncontroversial be- cau. e the) both have superb mmd The controver,) 1s wholly ideological." Or as Senator Alan Simpson (R-Wyo.) said "I find II galling and gagging. The high standard, of the Senate have been sullied and tra hed in a wrenched and puerile exercise in JUStice-bashmg. which 1 not veT) becoming" lrorncall), the conservative outrage at the liberal,' 1deolog1cal oppoS1t1on to Rehnqu1 t pre» 1de~ a double-edged rd The,e ame conservatives. who criticized Kennedy" ideological oppo i- uon t Rehnquist, want to ee Ro e Bird thr™ n out of oftice becau e the) believe she 1. too extreme m the opposite direc• t1on Her fel1011, JUS11ce.. Cruz Reynoso and Jo,;cph R. Grodin, are also targeted for removal \\'HY SHOULD the ch1!f JU tice of the Cahfomia upreme Coun be judged b) any different standard than the chief JU . ti e of the United State~ Supreme Coun' That wa, lht question California Su pr mt Coun Ju,11ce- Stanlc) Mosk rai<.ed m a recent column m the Lo Angele, Time Mo,k . a liberal who has been a JU\ll e long enough to forget the curiou loi;1c pol111cian, occas1onnll)' emplo). 1'.rote that neither Bird nor Rehnqu1 t ould be rtJe I d . olely becau e of their iJ ,1 gre He pointed out the log1cal in- con 1,tenc> of both g-roup, of ideologues

-liberals w~o want to retain Bird but not elevate Rehnquist, and conservative, who are IT) mg to run Bird out of office but are outraged at the liberals 11,ho oppose Former Caltfom1a governor Edmund G "?-at" Brown, who appointed Mosk, set up the Independent C111zens Commit- tee 10 Keep Polnic Out of the Couns to retain Bird and her besieged colleagues, Reynoso and Grodin. Yet he opposed ele- vaung Rehnquist to chief justice on poliucal grounds. Brown replied to Mosk m the pages of the Los Angeles Times, saying that Bird was merely up for reten- tion. not confirmation-a d1stinc11on lost The pnmary reason Bird's opponents, led b) the Crime Vicums for Court Re- form. w.mt to see her unseated m Novem- ber 1s her unbroken string of votes m opposition to imposition of the death pen- alt) following cert m types of murder com·ictions. Bird has voted against the death penalty some 59 times In all but a handful of the case • she v.-as not a lone hold ut and usually had the support of a Her cntics are incensed because when the legislature passed a death-penalty law, the Supreme Coun declared it unconslltu- tional-before Bird JOtned the court. Then Gwrge Dcukmej1an wrote a new Rehnquist on many. IT\3J0nt) of the court.

LIKE MOST associated with Crime Vic- t1ms for Coun Reform. Stickel also be- heves Bird's unbroken string of voles against the death penalty is an example of her soft-on-crime stance "She 1s a sym- bol." he says, "of the frustration that v1c- tims have because they believe the courts are slanted toward the defendant." He admits there is a political motive behind the atrempt to oust Rose Bird. "I am active politically with Governor Deukmejian," he explains. "M} feelings are personal. If I have a choice [between Rose Bird] and a justice the next governor j -who l hope is George Deukmejian- might choose, I would choose someone DeukrneJian would choose. Yes. 11 is po- This isn't the fir.;t time the California Supreme Coun took issue with the "will of the people" as expressed b; an innia- tive. In the middle Sixties, the California voters passed Propos11icin 14, easily over- rurning the Rumford Fair Housing Act. Proposition 14 legalized the right of pnvate individuals to practice racial discrimination in the sale and rental of housing. Professor Robert Simmons of the University of San Diego School of Lav. claims Proposition 14 established a system of apartheid in California. Almost immediate!) the California hllcal.''

Supreme Coun ,:uled, in the case of Mu/- death-penalr:,, law. but before II could be _ key ,,. Rei/man . that Proposition 14 was full) reviewed bj the Bird coun, the \/Ot· unconstitutional. e~ authorized the death penalty by initia- "It is interesting to noJe," says Sim- tive. This law is considered b) many legal mons, "no organized effort w-as brought scholars to be poorly drafted The coun to unseat Roger Traynor, who wrote the began to chip away at it Bird is being crit- Mulkey v. ReiIman decis10n. even though iciz.ed for being a Judge who follows her popular sentiment was opposed 10 his- own personal conscience rather than the conclusions.'' "-Ill of the people.

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NATIONS OFTE look to each other for judicial precedent. Compare what hap- pened in Cahfomia with Proposition 14- style apartheid in the mid-Sixties and what is happening in South Africa today. The legal system there operates under an odd hybrid of Roman-Dutch code la11. and English common law . ln code systems. the couns have little duty or power to in- terpret Jaw, but under English common law the couns can make laws, through the publication of their written opin- CONTINUED ON PAGE 195 1 1(})

" She determines the will of the peo- ple; says former banker Tom Stickel, v.ho now runs TSC Enterprises from Old Town and i\ regarded as a Deukmej1an in- sider "I thm~ Ro~e Bird tnes to legislate 1m,tead of follO'>'·ing the law as written on the boo She doesn't follow the "ill of the people" A non-la1>-yer who 1s active m the anti-~e Bird Cnme V1cums for C_oun Reform. Sud.el add s. "[They hould declare la"' s unconst11uuonal) only "hen the) are blatant!} uncon ti- tutional "

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