News Scrapbook 1986

San Diego, CA (San Diego Co.) Evening Tribune (Cir. D. 127,454)

tural interests, another $50,000 from the oil industry, more than $20,000 from auto dealers, and $65,000 from real estate interests, accordmg to re- search done by Independent Citizens' Committee to Keep Politics Out of the Court, a pro-Bird organization. Recently at the late Bar conven- tion, con umer activist Ralph Nader accused corporate interests of want- mg ·10 destroy the independence and compassionate na•ure of the Rose Bird court." 'The death penalty is simply a red herring that the ccrporate forces are usmg to hide the ilct that what they don't hke about R se Bird is that she issues reasoned judicial decisions against corporate polluters, com- mercial np-off irtists and horrible intere ts that prey on the average worker, homem.Kcr, child and citi- z n · he said Not so. said Jai t Byers, press di- rector for Cnmt Victims for Court Reform: "They (iro-Bird groups) are made up of libtral Democratic or- ganizations, mo;tly labor, and are big businesses d their own. Our av- erage contributon ranges from be- tween $20 and '5." The Bird cotrt on civil cases has generally favo~d renters over land- lords, land regdators over land own- er·, employees over employers and

Conunu, d'!j,rom age J victed of a 1979 di memberment murder of Eleanore Frances Bu- chanan in San Diego. The justices overturned Hamilton's sentence be- cause the Jury did not specifically find Hamilton mtended to kill, even though the victim's hands and head had been cut from the body. Bird upporters say the specific, gn ly facts of any particular case must be ignored be ause intent - the state of mind of the defendant - 1 a crucial ingredient m any first- degree murder case. Bird supporters have pointed out that her vote is only one that makes up a maJorlty op1mon. They have ob- tamed admi ions from groups like n H L Hichardson's Campaign to Defeat Ro Bird that campaign lit- erature accu mg Bird's court of relca mg convicted murderers from pn on 1s wrong l er po ltwn ha be n mi • repr ented even by law •cholars like Professor Lloyd Cohen of Cah- forma We ·tern Law School. who said, "In 50 out of 50 r,1 ·c.s she can figure out a way to let some hideous ax murderer out of pri. on " In fact, ·mce Bml h · been chief justice, no person who e de th sen- tence was rever ed by the C aliforma upreme Court has been released fr m pri on or jail ' When we send rnethmg back for rctnal, it goc back fo r either a death s ntcnce or hfe without poss1- b1llty of parole " Bird told a televi- 10n reporter. Bird maintains he has "never voted again t the death pen- alty,' hut ha simply examined fla ·ed portions of the law Reversal· are normal, legal ex- pert:; aid. because the language of the de th pen. lty 1mltallve of 1978 - overwhelrrmgly approved by Cali- fornia vo ers wa. slc,ppy and vague. But other legal cholars say Bird's wntten opinions reveal a moral op- pos1llon to the death penalty, and that . he ignores facts and the law in fa~·or of her own views. Recently, Bird supporters have charged that powerful commercial and real estate interests. agribu i- n ss and insurance companies have manipulated the emot1onal outrage over the d ath penalty because they want to put con ·ervative, pro-busi- ness ju~tice ·on the court. More than $50,000 was donated to the anti-Bird campaign from agricul-

consumers over manufacturers and retailers, legal experts agreed. These same scholars also say that the judicial activism of the Supreme Court 1s nothing new. For three dec- ades, the Ca lifornia Supreme Court has been a bellwether for the rest of the nation. even the U.S. Supreme Court. "The California Supreme Court has been active for 30 years, ever smce I went to law school. I used to hear the same arguments when there was no Rose Bird,'. said one local attorney who requested anonymity. One controversial ClVII ruling per- mits people to collect 1gnatures for a ballot initiative in a shopping cen- ter mall. Bird foes say the case shows how the court "has been abu- sive of property rights." "The result of this decision I that a shopping center owner 1s no longer able to protect his custom from harassment," said a paper published by an anti-Bird group Lawyers for Court Reform. Robert Simmons, a University of S~law professor and loumier of San D1egans for an Independent Judiciary, applauded the dec1s1on. He said it recognizes ''that shopping cen- ters are quasi-public and there ought to he some limited nght for people campaigning."

"It depends on whose interests are involved whether you cheer or groan (about these decisions)," Simmons said. In another controversial decision, the court said victim of a cancer- causing hormone widely prescribed to pregnant women in the 1950s, DES. have the right to sue all manu- facturers of the product even when they can't specifically identify the manufacturer of the one that harmed them. Bird foes say the case, Sindell vs. Abbott Laboratones, "is considered revolutionary in the area of products liability." But in fact , state appellate courts across the nation have ruled virtually the ame thing in cases in- volving IUDs. DES and sbestos. n a serie of rulings in landlord- tel'Jant di pu • th Bird court up- held rent-control ordinances, held lapdlords tnctly liable for injurie. s1..ilered by renters and said land- lords can't discriminate against cou- ples with children. ' Bird foes say these rulings show ttie court's "predilection to take ex- treme pos1 lions" and to ereate ' perverse economic results that can- not possibly reflect the intent of the Legislature." Simmons praised one of these rul- ings, Marina Point Ltd. vs. Wolfson, 1,hich banned an apartment com- ex's "adults only" policy. He ~aid it "pro-family and consistent with court rulings for 20 years that land- lords can't discriminate '' In Pugh vs. See's Candy Co., the court ruled that See' was wrong to fire a longtime employee, even though the mployee had no wntten emplo ien t contract, because the emp ovee many year · with the company e tablished an implied con- tract "It was not p~r of the law of con- tracts until t cy wrote that deci- sion," noted krry Williams, a la bor arbitrator and former University of San Diego law professor Bird foes m general attack the court for "Judicial activism" - that is, for disregarding the Legislature and case law to achieve its own lib- eral ·ocial and political goals through judicial fiat. On the other hand, the insurance industry was delighted when the court upheld the constitullonality of the 1975 Medical lnJury Compensa- tion Reform Act that limited attor- ney fees and awards to patients in

medical malpractice. suits. Bird and her supporters have been caught between a rock and a hard place - of needing to take their case to the public and a judicial canon that ay " ... a judge should not engag m any political activity,• other than on beha If of measures to improve the Jaw, the legal system or the administration of justice." The spht along traditional Repub- lican-Democratic, conservative-lib- eral lines has made some people fear that in the future all judges will look toward the popular will, rather than the law, when considering cases. The role of the judiciary is to up hold the rights of the unpopular mi- nority, to champion the indi v1dual's liberties against the will of the ma- JOnty, legal scholars say. Thus judg- es should be removed only if their behavior 1s incompetent. lazy or uneth1ral, and not because of their 'When we send something back for a retrial, it goes hack for either a death sentence or life without possibility ofparole'

As a high school honor student Bird distinguished herself from her "99 percent Republican ' neighbors, as she once called them, by cam- paigning for Adlai E. Stevenson, the Democratic presidential nominee in 1952. She won top honors and scholar- ships in college and graduate school. She dropped plans to obtain a gradu- ate degree in political science after working as an intern at the state Legislature in Sacramento. Years later she said the experi- ence rompelled her to apply to law school because she rea lized lawyers and leg islators were best abl to m- fluence society. Her fir t job after passing the bar exam was with the public defender's office of Santa Clara County. After eight years, she was set to establish a private practice when she decided to work for Democra tic gubernatorial candidate Jerry Brown. After he won the election in No- vember 1974, she became one of his close advisers. He appointed her ec- retary of California's Department of Agriculture and Services, the first woman to hold a Cabinet-level posi- tion m the state's history She drafted a landma rk fa rm labor bill guaranteeing farm workers the right to hold secret ballot umon elec- t10ns. But accordi ng to law professor Ireland, the reform backfired She al- ienated unions and farmers b causP "she allowed farm workers to union- ize but she didn't allow one union to lake over." In February 1977 Brown nomi- nated Bird for the post of chief jus- tice, setting off rounds of attacks that haven't ceased. Her lack ol judi- cial experience sparked an uproar. Prpsecutors and law enforcement officials claimed her background as a public defender made her unquah- fied to serve as a judge because she was too sympathetic to criminal de- fendants. Then as now, her upporters said the attacks were fueled by partisan polillcs and sexism. Eighteen U.S. Supreme Court jus- tices - including Ohver Wendell Holmes. Louis Brandeis, Felix Frankfurter, Earl Warren and Wil- liam Rehnquist - had no previous judicial experience, they pointed out On March 26, 1977, Bird was sworn in. Under California law, Supreme Court justices appointed by th gov- ernor must be approved by the elec- torate at the next gubernatorial elec- tion. She squeaked by with a bare 52 percent majority the following year. She has now served as chief justice longer than all but two of her prede- c~ssors. She earns $104,330 a year. Her years in office have been marked by sweeping institutional changes that have ruffled many in the halls of justice. Bird has conceded that perhaps she presided over too many abrupt and quick changes when she took off- ice. The sense of urgency was caused in part by an uncertainty about how long she had to live. When Bird was m her late 30s, her right breast was removed for cancer. In the next two years, she had two more cancerous tumors removed. Bird has said that cancer forced her to confront a tendency to hide from problems through compulsive work and encouraged her "to deal more effectively with the stresses in my life." She switched to an almost com- pletely vegetarian diet. In March of this year, the alumni association of the University of San Diego School of Law took an unprec- edented step of issuing a statement supporting the concept of an "inde- pendent judiciary." "We were concerned that the elec- tion was becoming extremely politi- cal in nature . .. ," said Adrienne A. Orfield, president of the associa tion. "I think it's important for all judg- es everywhere to be independent of these political pressures." 'Umpires simply don 't make policy. People who make policy, on the other hand, ought to be accountable to someone in a democratic institution'

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1deolog1e ·, according to this argu- ment Bird herself likens the role of the court to umpires in sporting matches who imply call the shots as they see them. But the anti-Bird forces say the court does not simply administer the law - it has set long-term economic and social policy through its hun- dreds of cases. "Umpires imply don·t make poh- cy. People who make policy, on the other hand, ought to be accountable to someone m a democratic institu- tion," said Gideon Kanner, a Loyola University Law School professor and anti-Bird spokesman The rage over the death penalty has had the effect of obscuring Bird's record as an administrator: Under her regime, all personnel vacancies are now open to the public. Meetings of the state Judicial Coun- cil are held at the State Building in San Francisco rather than at exclu- sive resorts. For the first time m the court's history, its internal workings have been publi. hed, as have the internal rules of the Courts of Appeal An unprecedented number of women, black, Latino and Asian Judges have been appointed to vari- ous counci ls and committees. Television reporters and photogra- phers are allowed for the first time to cover proceedings at both the trial and appellate court levels. Computers and word processors have been installed in the Supreme Court and Courts of Appeal. And Bird oversaw the creation of the Califor- nia Appellate Project, a private, non- profit corporation that represents poor defendants in criminal appeals, especially death penalty cases. "To the overall administration of civil law, I happen to feel Rose Bird has done an excellent job," said at- torney Phil Burkhardt, chairman of the San Diego County Bar Associa- tion's State Bar delegation. "What's important is that the process is or- derly and predictable." What has happened in this virtual- ly single-issue race, attorneys and law professors say, is that Bird has become a scapegoat for the public's mounting frustration with crime. A feeling of helplessness about crime is compounded by the percep- tion that somehow the courts are out of touch with the feelings and desires of ordinary Californians. "There's a feeling that the public should have more to say about ap- pointments to higher tribunals, that the executive and legislative branch- es are more responsive to the public will. There's a feehng that actions taken by those other two branches have been negated by the courts, and this infuriates a lot of people," Wil- liams said. Bird's critics have cast her as a kind of medieval scholar who can argue brilliantly about the number of angels that dance on the head of a pin. "This issue of competence is a red herring," said law professor Cohen, who will take the anti-Bird position against California Western law pro- fessor Marilyn Ireland month's debate. "This is a dirty little secret about a law: a judge can make a result seem defensible when he or she wants to come out a certain way. Death-pen- alty eases illustrate that." Bird may be blasted for being out of touch with the average citizen, but she rose to her present stature from humble origins. The youngest of three children, she was born on a chicken farm m Tucson, Anz., on Nov. 2, 1936. Her parents separated when she was 5 years old Her mother, Anne Bird, took a factory job at a nearby Air Force base, eventually moving . the family to her home state of New York to find better work. The chief justice, who is not mar- ried, used to share her Palo Alto home with her mother until last year, when repeated threats agamst the justice's life prompted her to move her mother to another resi- de ce•~-----.,_, ~-~--

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San Diego, CA (San Diego Co.) Evening Tribune (Cir. D. 127,454)

San Diego, CA (San Diego Co.) Daily Transcript (Cir. D. 7,415)

SEP3 0 1986

SEP 2 9 1986

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oline-doused coed torch sJ,,~sdf at USD A Un vefs~· San Diego tudent was sefiously burned after dousing herself with gasoline and etting 1t afire m a campus parking Jot early today, pohce said. Debbie Kathryn Mane lontgom- ery, 19 of Caminito Partida, was m nous cond1t1on at the UCSD Medi- cal Center Burn Umt with cond- and third-degree burns on 38 percent of her body, a poke ·woman aid Firefight rs and paramedics were called to t campus at 2:30 a m after security guards heard Mont- gomerJ screaming aod saw the fire next to the USD aquatic center park- ing lot, said police spok man Rick Carlson

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_;-;:; - *. * US '.!,aw School Dean Sheldon Krant is ,ecov~,%°Sharp Hospital after su-~ery for a bleeding ulcer. ./ . * .. .. -- --~

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