Death Cases Seen Delaying Justices on Key Civil Issues

SAN FRANCISCO â€”  In its intensive effort to reduce a staggering backlog of capital cases, the state Supreme Court has issued death penalty rulings at a record pace, filing 41 such decisions in just over a year.

But as the justices concentrate on reviewing death verdicts, there is widespread concern in California legal circles that the court is being forced to neglect civil cases and that important decisions thus are being delayed.

Cases that could decide far-reaching questions on the rights of fired non-union workers, the scope of state anti-trust law and the ability of unmarried people to sue for the negligence-caused death of a loved one all remain undecided 15 months after being argued before the court.

Other cases that could broaden homeowners’ insurance coverage for property damage arising partly from earthslides and set new limits on the political activities of the State Bar also remain pending after being argued late last year.

On another front, the justices have sidestepped review of scores of decisions by the state Courts of Appeal by turning increasingly to a procedural device known as “depublication.�

Such an action bars use of a lower-court decision as precedent and enables the justices to effectively eliminate rulings with which they may disagree, without having to hold a hearing and issue an opinion.

“There’s no question that the capital backlog is having an adverse impact--but that’s the price you pay for having a death penalty,� said UC Berkeley law professor Preble Stolz.

“Death cases are unique--they involve a complex review process--and they’re going to prove costly and time-consuming in that respect,� Stolz said. “The best argument there is for abolishing the death penalty is the effect it has on the system as a whole.�

More and more, lawyers who practice civil law are calling for reform. They do not blame the justices--for whom seven-day work weeks are not unusual. Nor do they fault the court for trying to reduce its docket of capital cases--many of which have been in the courts for five years or, in some instances, nearly a decade.

But these critics do say that major changes in the system may be necessary if the court is to maintain balance in its production of criminal and civil decisions.

Ian I. Herzog of the California Trial Lawyers Assn. says the backlog of death penalty cases has proved “absolutely devastating� to the court.

“It’s not that the justices are not working hard, it’s that there are only seven of them to do the work,� said Herzog, a Los Angeles attorney who is chairman of the association’s committee that files briefs on important cases with the court. “What’s going to happen when the court has so many death penalty cases it doesn’t have time for anything else?�

Complaints About Caseload

The justices themselves have acknowledged publicly that the demands of a heavy caseload prevent them from granting petitions for review in many cases they want to hear and decide.

As a result, lower courts, lacking guidance from the high court, too often come up with conflicting rulings on important issues--or put off important legal questions for another time, lawyers say.

“There are a lot of cases the court is not going to be able to hear because of the backlog--and that’s a critical problem,� said Kent L. Richland, who leads the appellate court committee of the Los Angeles County Bar Assn. “This means that a lot of injustice is being done in civil cases where a ruling by a lower court is not correct.

“Obtaining review from the justices now is a real crapshoot,� Richland said. “There is an awareness that even terribly important cases may not be heard.�

But some experts, while acknowledging the seriousness of the court’s capital backlog, note that, historically, it has often taken the court several months or even years to decide complex and difficult cases--and justifiably so.

“Many of these cases pending before the court involve enormously complex issues,� said Ellis J. Horvitz, an Encino attorney who is past president of the California Academy of Appellate Lawyers. “I’d rather see them take a little extra time than rush out with opinions and, in doing so, raise a whole new series of questions that would have to be resolved in subsequent cases.�

Fast Action in Some Cases

Further, Horvitz and other authorities point out that the court in recent months has acted quickly to resolve a number of important civil cases with far-reaching impact.

Among others, the court under Chief Justice Malcolm M. Lucas has upheld the state’s mandatory auto insurance law; ruled that police may use roadblocks to catch suspected drunk drivers; upheld the constitutionality but limited the immediate impact of the “deep pockets� liability-reform initiative and, only nine days after hearing arguments, ruled that Gov. George Deukmejian’s nominee to fill the office of state treasurer--Rep. Daniel E. Lungren--could not take office without receiving confirmation by both houses of the Legislature.

And, as authorities readily acknowledge, the court is just now working its way through a difficult transition period. Three new justices have joined the court since the departure of Chief Justice Rose Elizabeth Bird and two other court members defeated in the fall 1986 election.

The transition has been further complicated by the temporary absences last year of Lucas and Justice Marcus M. Kaufman, who both underwent successful cancer surgery.

Yet even with its concentrated effort to decide capital cases, the court’s backlog remains virtually unchanged since the departure in January, 1987, of Bird and Justices Cruz Reynoso and Joseph R. Grodin.

When Lucas was sworn in as chief justice in February, 1987, there were 171 death penalty cases before the court. Since then, the court has worked at a feverish pace--affirming 29 sentences and reversing 12 others.

But death verdicts continue to stream in from the trial courts--and as of last week, there were 185 capital cases awaiting decision, representing about half of the court’s caseload.

Court Activity Grows

The backlog of death penalty cases is made all the more difficult by the dramatic overall growth of court activity in recent decades. In 1970, for example, there were 2,524 petitions filed seeking review of lower court opinions; by last year, the number had grown to 3,498, according to the annual report of the state Judicial Council.

The court’s current plight was underscored in a study by Gerald F. Uelmen, dean of the Santa Clara University Law School, published this summer in California Lawyer magazine.

Uelmen concluded that the court is “no longer functioning as the architect of California case law,� but has become “chiefly a death penalty review court.�

The study found that the court under Lucas had produced only 80 opinions in its first year--the lowest annual output in half a century. In the same period, the court heard argument in 75 capital cases--the most ever heard in a single year by any court in the United States.

The justices also set another record by ordering depublication of 126 rulings by the state Courts of Appeal--an action that limits the impact of such decisions to the parties involved and eliminates use of the rulings as legal precedent.

Kaufman acknowledged recently that depublication in many cases was much less desirable than granting review and issuing a decision that would be binding throughout the state.

“But I don’t think the Supreme Court could operate without depublication,� Kaufman told an audience of judges, lawyers and journalists at the UC Berkeley Boalt Hall Law School. “We’re overwhelmed with cases and, in many instances, we couldn’t grant a hearing if we wanted to.�

Meanwhile, calls for change have begun to grow. Uelmen, for example, urged adoption of a previous proposal by Justice Stanley Mosk to expand the court from seven to 11 members, with separate panels to decide civil and criminal cases.

Other proposals call for death penalty cases, which now come directly to the Supreme Court, to be sent first to a Court of Appeal for their initial review. That would place the time-consuming burden of reviewing the trial record and refining the issues in a case on the appeal courts, rather than the justices.

No Sweeping Changes

But relatively little has been achieved thus far to revamp high-court procedures. A blue-ribbon commission appointed by Lucas to study the problem recommended a variety of changes but shunned calls for drastic action.

For example, the commission declined to recommend any reforms in the handling of capital cases that would require changes in state statutes or the state Constitution, such as sending such cases to the Courts of Appeal.

The commission, chaired by retired Supreme Court Justice Frank K. Richardson, did urge that the high court’s workload be lightened by sending state Public Utility Commission and State Bar disciplinary cases to the appeal courts for initial review. But the PUC proposal was killed in the Legislature and the Bar plan remains before a legislative committee.

The Legislature did provide funds for the court to hire six more staff attorneys to help the justices with civil cases, as recommended by the commission.

Other proposals made by the commission for internal reforms--such as creation of a special staff unit to help with capital cases and adoption of “time-standards� for deciding all cases--remain under review by the justices.