6 Named as High Court Contenders : Woman, Latino on Deukmejian’s List for 3 Posts

SACRAMENTO â€”  Gov. George Deukmejian on Tuesday proposed six judges, including a woman and a Latino, for potential appointment to three upcoming vacancies on what is expected to become a more conservative California Supreme Court.

In sending the list to the State Bar for its evaluation of the candidates, Deukmejian acted only six days before Chief Justice Rose Elizabeth Bird and Justices Cruz Reynoso and Joseph Grodin, who were rejected by the voters last month, must leave office.

Appointment Process

Deukmejian, who helped lead the drive to oust the three liberal jurists, said he hoped to complete the appointment process “in an expeditious fashion to minimize any disruption in the functioning of the court, but consistent with my pledge to appoint new justices who will contribute to enhanced confidence in the Supreme Court.� The appointment and confirmation process can take as long as four months, but there were indications that it could be streamlined, especially because four of the jurists were previously evaluated by the Bar for a 1985 vacancy that went to Edward A. Panelli.

The big surprise in Deukmejian’s announcement was inclusion of San Diego Superior Court Judge Patricia Benke, 37, a former state prosecutor whose name rarely emerged in speculation over whom the governor may nominate to the high court.

As widely anticipated, Deukmejian named John A. Arguelles, 59, a Latino and associate justice of the state Court of Appeal in Los Angeles, as a contender for the high court.

Appellate Justices

The other candidates on Deukmejian’s list were state appellate court justices David N. Eagleson, 62, of Long Beach; Hollis Best, 60, of Fresno; Marcus M. Kaufman, 57, of San Bernardino; and James B. Scott, 58, of San Francisco. All except Benke and Eagleson were evaluated earlier by the Bar for the 1985 appointment to replace Justice Otto M. Kaus that eventually went to Panelli.

Deukmejian, whose appointees will total five of the seven members of what has been widely considered as an innovative and liberal court, said of his six potential nominees: “I believe there exists broad respect for the ability and temperament that each of these distinguished judges has demonstrated during his or her legal career.�

Two Deukmejian appointees, both regarded as conservatives, already sit on the court--Panelli and Malcolm M. Lucas. A former federal judge and the governor’s former law partner, Lucas was named to the court in 1984 and recently selected by Deukmejian to succeed Bird as chief justice.

While legal observers doubt that there will be abrupt and wholesale reversals of Bird Court precedents, there is wide agreement that the new court, over the long run, will turn substantially to the right.

“It appears the governor is looking for known quantities--people who have fulfilled his expectations,� said Dean Gerald F. Uelman of the University of Santa Clara Law School. “He doesn’t want any surprises.

“All of them seem to have very good reputations among lawyers and fellow judges,� Uelman said. “And all seem to be quite conservative.�

The governor has been under pressure to consider a woman and a member of a racial minority for the court in light of the departure of Bird, its first female member, and Reynoso, its first Latino.

The inclusion of Arguelles and Benke on the new list won praise from Armando Duron, president of the Mexican-American Bar Assn. of Los Angeles.

“We hope that whoever is named will be fair and impartial and also bring to the court the diversity it needs in considering the issues it faces,� Duron said. He added that he considered it a “good sign� that Deukmejian had included a woman on the list.

Benke’s inclusion also was welcomed by Patricia Shiu of San Francisco, president of the California Women Lawyers Assn. But Shiu expressed disappointment that the list included only one female candidate.

“The governor has a real wealth of women to choose from the state court of appeals and the federal courts,� Shiu said.

It may be some time before the governor’s final three choices take seats on the court. A 26-member commission of the State Bar can take up to 90 days to complete its evaluation, but the process may well be expedited because four on the list have already been screened by the commission.

When the Bar’s review is completed, the governor will formally nominate the three successors to Bird, Reynoso and Grodin and send their names to the state Judicial Appointments Commission. Ordinarily, the commission allows 30 days for interested parties to send comments or ask to testify, and then holds public hearings on the nominations. The commission then votes promptly after conclusion of the hearings and confirmed nominees are ready to be sworn into office.

Here, briefly, is some biographical background on the six candidates. Patricia Benke

Benke served as a deputy under Deukmejian when he was state attorney general, and specialized in criminal appellate cases. In 1983, Deukmejian appointed her to the Municipal Court in San Diego and last year promoted her to the Superior Court.

Regarded as a workaholic, she once told Deputy Atty. Gen. John W. Carney that she gets headaches if she has long periods in which she is not working. “I don’t know anybody who works harder,� he said.

After losing a death penalty case in 1981, Benke, then a deputy attorney general, blistered the Supreme Court for making a “mockery of the justice process.� In an opinion by Justice Stanley Mosk, now a potential colleague of Benke, the court said that defendants in death penalty cases cannot plead guilty and ask for the death penalty without their lawyer’s consent.

Asking for reconsideration, Benke said that by denying defendants the right to admit their crimes, the court’s ruling created a “justice system where a defendant cannot speak the truth in a court of law.�

As a result of the ruling, she said, the “trial process thus becomes a charade forced upon a defendant who wishes to simply confess his crime. It becomes a hurdle to the truth.�

Robert Philibosian, an assistant attorney general when Benke was a deputy state prosecutor, called her an “outstanding appellate prosecutor� who was “vigorous and aggressive.�

He said Deukmejian considered appointing Benke to the Court of Appeal in San Diego earlier this year. Deukmejian passed her over, however, and appointed veteran trial court judge William Todd to the post instead.

Benke received a bachelor’s degree from San Diego State University in 1971 and her law degree from the University of San Diego, where she was managing editor of the law review. David Eagleson

A trim and dapper physical fitness buff who runs several mornings a week and works out at a gym, Eagleson is an expert in civil law who rarely has handled criminal cases. He decided so many challenges to Los Angeles-area development plans in the early 1970s that he earned the sobriquet “zoning czar.�

Regarded as somewhat conservative in his opinions, Eagleson is viewed in legal circles as extremely fair, impartial and knowledgeable. His zoning decisions often favored environmentalists while softening losses for developers.

In 1972, for example, he froze development of 775,000 acres of undeveloped land in the Santa Monica Mountains because county supervisors had failed to adopt a required interim open space plan. When the plan failed to emerge six months later, he chided the supervisors for the delay and then used what he described as a “softer approach,� considering and approving several hundred exemptions from his freeze at the request of landowners and developers.

Eagleson, who practiced law for 20 years before appointment to the bench by Reagan in 1972, served as presiding judge of the sprawling Los Angeles Superior Court in 1981-82 and is a former president of the California Judges Assn. John A. Arguelles

Arguelles was a Superior Court judge in Long Beach from 1969 until 1984, when Deukmejian appointed him to the state Court of Appeal. Previously he was a Montebello city councilman and a lobbyist in Sacramento for the Pacific Coast Quarter Horse Racing Assn.

In a 1984 background report prepared by the state attorney general on potential appointees to the Court of Appeal, he was described by one lawyer as the “hardest worker� on the Long Beach Superior Court bench, “extremely deliberate� and “extremely slow.�

He built a reputation as being “pro-prosecution� and a tough sentencer, the report said. One deputy public defender in Long Beach said Arguelles was basically average on his knowledge of the law and indicated that he had some difficulty in dealing with some issues, especially questions of search and seizure.

The report said another lawyer observed that Arguelles “bends over backwards to try cases fairly� and “it sometimes pains him to rule for the defense but he will do so where appeal cases require it.� James Scott

Scott was appointed to the appeals court in 1974 after being elected to the Santa Clara County Superior Court in 1968. Previously, he was named to the Municipal Court bench by Gov. Edmund G. (Pat) Brown in 1963.

In a notable decision, Scott wrote a majority opinion in 1979 that upheld the constitutionality of a law intended to cut off Medi-Cal payments for abortion. In 1981, the state Supreme Court reversed the decision.

He also authored an appellate court decision that blocked the parole of “Onion Field� murderer Gregory U. Powell. The decision was overturned Monday by a 4-3 vote of the Bird Court. Marcus Kaufman

Kaufman is considered very conservative and has been quoted as describing himself as a “redneck with a high IQ.� He was appointed to the Court of Appeal in 1969 by Reagan and previously was a pro tem judge for the superior and municipal courts in San Bernardino County.

Ellis Horvitz, past president of the California Academy of Appellate Lawyers, said that of the six candidates, Kaufman is “clearly the most experienced on the appellate bench and is simply an outstanding jurist . . . absolutely brilliant.�

In describing his approach to criminal cases on Tuesday, Kaufman noted that appellate judges generally have several sets of legal rules to choose from, and added, “If at all possible, I would choose one that would uphold a conviction rather than try to find some technical reason to reverse a conviction.� Hollis Best

Best was appointed to the Superior Court in Fresno County by Reagan in 1972 and elevated by Deukmejian to the Court of Appeal by Deukmejian in 1984. As a trial court judge, he ordered to jail four editors and reporters of the Fresno Bee for refusing to disclose their sources in a grand jury investigation. He later released them.

One of his appellate opinions allowed the state to use chemicals to kill predatory white bass in Tulare County streams without permission from neighbors. Another appellate ruling said political advertising is not covered by state laws regulating unfair business practices, rejecting a Republican legislator’s arguments.