Accessibility, Informality Cited : Lucas--an Active Healer of Wounds on High Court : HOW LUCAS IS VIEWED BY HIS COLLEAGUES

SAN FRANCISCO —  When he was sworn in a year ago, Chief Justice Malcolm M. Lucas said he hoped the California Supreme Court would have a “quiet time to heal itself” after a tumultuous election in which three court members were voted out of office.

Under his tenure so far, however, the court has been far from quiet.

With Lucas writing some of its major decisions, the justices have overturned significant rulings of the court under Chief Justice Rose Elizabeth Bird and charted a clear new philosophical course to the right.

And in his role as administrator, Lucas has ordered a sweeping review of court procedures to try to trim the court’s growing backlog of cases and has initiated changes to try to speed the decision-making process.

But the 60-year-old chief justice has also brought a notably different style to the office that does seem to be healing any wounds left within the court. Those who work closest with Lucas say there is a new atmosphere of accessibility, informality and collegiality.

Lucas’ wry sense of humor--his “one-liners,” as they are known--and an open-door policy have helped relieve tension that insiders say had plagued the court for years.

Conflicts among the justices were dramatically revealed in the unprecedented public hearings of 1979 when the court was investigated by the state Judicial Performance Commission and cleared of allegations that controversial decisions were purposely delayed to help ensure voter confirmation of Bird and other justices.

Afterward, efforts were made to improve relations among court members and staff, but strains existed through the rest of Bird’s tenure. Now, say a variety of sources, the court is a happier institution. And much of the credit goes to Lucas.

Where Bird was seen by critics as guarded and inaccessible, the new chief justice solicits advice, welcomes colleagues into his office without invitation and tries to become better acquainted with staff members.

Whereas Bird rankled some by using an aide to deal with court members, the staff and the public, Lucas has won praise for dealing directly with court personnel and others whenever possible.

Justices and staffers alike decline to publicly compare Lucas and Bird, not wishing to refuel the controversy over Bird that her friends and foes agree brought the court under political siege and damaged its reputation. But there is little hesitation to praise the new chief justice.

The court’s senior member, Justice Stanley Mosk, said of Lucas: “From the point of view of collegiality, his administration this past year has been excellent. He’s pleasant to work with and takes suggestions on administration very readily.”

Mosk, a generally liberal justice who has been on the court since 1964, has often found himself in disagreement with the conservative Lucas in the court’s rulings.

On Monday, for example, Lucas wrote the majority opinion when the court set aside a milestone ruling by Mosk in 1976 that barred any use of illegally obtained statements from criminal defendants.

Mosk noted that there are bound to be disagreements within any court and said that under Lucas legal issues are discussed without rancor.

“Things are debated with total civility and objectivity, without any injection of personality in any way,” he said. As for Lucas, Mosk added, “It’s a pleasure to disagree with him.”

Justice David N. Eagleson, one of three appointees of Gov. George Deukmejian who joined the court last March, observed: “He’s just what this court and this state needed.”

Justice John A. Arguelles, a newcomer to the court but a longtime acquaintance of Lucas, said he has never seen the chief justice in ill humor. “He’s even civil during the week of the Trojan-Bruin football game,” said Arguelles, a UCLA graduate, of USC alumnus Lucas.

Quick to Offer Help

On a more serious note, Justice Marcus M. Kaufman recalled how Lucas quickly made himself available to assist Kaufman last summer when he underwent surgery for colon cancer--the same malady the chief justice suffered earlier in the year.

“His door is always open,” Kaufman said. “When I had my illness, we talked several times at moderate length. He’d just been through the same thing, and it was greatly important to me.”

Lucas undergoes periodic checkups and, according to a court spokeswoman, has suffered no recurrence of cancer. Kaufman also appears fully recovered and said he has resumed playing tennis.

Court staff members, whatever their feelings about Bird, acknowledge that Lucas has brought a markedly different style to the office of chief justice.

“Contrary to her image, Bird could be very charming and very charismatic and very funny in her own way,” one aide said. “But, deserved or not, she had a reputation for ‘hiding out’ in her office . . . and a lot of people here didn’t get to see much of her.

“Lucas is much more at ease. The best thing about him is that he frequently comes out of his office and talks to people. You get to see him more.”

Lucas’ ease with others and his sense of humor are evident on the bench as well as within the court.

For example, in a recent public session where a lawyer was about to argue a case the justices were hearing a second time, Lucas dryly asked the attorney if he was going to “lip-sync” his words while playing a tape-recording of his previous argument.

At another hearing, a lawyer urging the court to adopt a disputed legal standard for the use of confessions was asked by the chief justice: “Is it true this rule exists only in Paradise?”

Humor Subtle

The lawyer was momentarily taken aback before he realized Lucas was joking about the fact that only the state of Hawaii apparently had adopted the rule the attorney advocated.

As an administrator, Lucas has given first priority to trying to reduce the court’s heavy backlog of cases, which has continued to grow since he took office.

Soon after taking office, he named a committee of legal experts led by former Justice Frank K. Richardson to propose new ways to process cases. Lucas expressed particular concern that the court was spending perhaps half its time “deciding what to decide”--reviewing lower-court appeals to see which it should agree to hear and decide.

The commission is scheduled to make its final report to the chief justice on Feb. 16. The group is expected to recommend major reforms that, if enacted into law, could substantially streamline the court’s decision-making process.

Among other things, the commission has been considering proposals to send death penalty cases to the courts of appeal for review before they come to the state Supreme Court. Capital case appeals now come directly to the high court, requiring the justices to pore over thousands of pages of trial transcripts, records and briefs before they can identify and decide the major issues in a case.

Also under consideration are similar proposals to have the appellate courts review the State Bar disciplinary cases and appeals from Public Utilities Commission decisions that the high court now receives directly. Appeals court decisions in such cases then would be reviewed by the justices at their discretion.

Backlog Continues

The new court, moving through a difficult transition period that inevitably slowed the process, continues to face a mounting backlog despite a concerted effort to reduce the load by dropping more than two dozen cases that had been granted review by the Bird court.

When Bird left office in January, 1987, there were 372 pending cases, including 171 death penalty cases. Now, there are 405 pending cases, including 199 capital cases.

Since the new justices took office last spring, the court has concentrated much of its work on the difficult and time-consuming capital cases. Of the 169 cases the new court has heard so far, 60 were death-penalty cases.

The court has decided six capital cases--upholding death sentences three times--and is reconsidering another capital case in which it previously upheld the death penalty.

Justice Edward A. Panelli, who along with Mosk is an advisory member of the special commission, credited Lucas for his efforts thus far to improve court procedures.

“But we’re still struggling with the old methods,” Panelli said. “Unless we change those methods, the caseload is going to get heavier and heavier.”

The chief justice, while awaiting the recommendations of the Richardson commission, has put some changes into effect that may prove helpful to the court.

Besides their weekly closed conferences to consider petitions for review of lower-court decisions, the justices now hold monthly “opinion conferences” in which they discuss tentative, draft opinions that are circulating within the court to settle any differences more quickly.

This way, individual justices learn sooner when there has been a shift in position in a case by another justice or when new questions have been raised.

‘Resolved Over Table’

“We’ve resolved some issues over the table that otherwise would have had to wait for resolution by written memos,” Eagleson said. “It’s been very productive.”

On another front, Lucas, a frequent dissenter while a member of the court under Bird, now finds himself solidly within the new conservative majority that seems destined to prevail on decisions involving criminal law, civil rights or other politically sensitive issues.

The chief justice wrote the opinion last August when the new court upheld a death sentence for the first time, affirming a death verdict against David L. Ghent Jr. for the stabbing murder of a San Jose woman.

Lucas joined Mosk’s majority opinion in October when the justices overturned a far-reaching Bird court ruling that Lucas had opposed, ruling that a defendant in a felony murder case can be sentenced to death without a jury’s finding that he intended to kill his victim.

Lucas wrote the majority opinion when the court held in September that police may stop and question young people they suspect, but do not actually know, are truant from school.

In Monday’s ruling, it was the chief justice who wrote the opinion discarding the state constitutional ban on all use of improperly obtained statements, saying they could be used to challenge the truthfulness of a defendant who testifies at trial.

Ruling Favors Defendant

Lucas also wrote one of three decisions in which the new court overturned a death sentence, ruling in December that Prentice Juan Snow, the accused killer of a Pasadena pharmacist, was entitled to a new trial because of evidence of racial bias in his jury selection.

In the view of some authorities, the opinions being issued by the court under Lucas--even when there are dissents--appear to be more cautious in scope and reserved in style than the previous court.

“The tone of the opinions seem to be less confrontational,” said UC Berkeley law professor Preble Stolz, a close observer of the court and an occasional critic of Bird. “Members of this court seem more respectful of their colleagues’ views--and this is very desirable.”

At this point, however, there is no indication that Lucas has attempted to take a dominant role in the court’s decision-making process, as a chief justice might be tempted to do.

“That’s not his style,” one court member said. “He’s got one vote, like the rest of us, and there are no beginners on the court. No one on the court would appreciate someone trying to run some kind of legal autocracy--and he’s very democratic. . . .”

Although the new court thus far has escaped the kind of controversy that surrounded the old court, Lucas and his colleagues have not been entirely free of criticism.

Could Suffer Attack

Some observers believe that, to some degree, the Lucas court could eventually come under attack from the left, just as the Bird court was assailed from the right.

Defense lawyers have sharply criticized the court’s decisions allowing some use of unlawfully obtained confessions and upholding the death penalty over claims that procedural errors--which the justices found harmless--deprived defendants of a fair trial.

Criticism is also coming from attorneys representing minority groups over court rulings that upheld the new mandatory auto insurance law, despite claims that low-income drivers could not acquire insurance; barred a state civil rights agency from imposing punitive damages on employers for job discrimination, and upheld the right of mobile home parks to bar families with children younger than 17.

In the view of some court-watchers, Lucas, as chief justice, could end up being the prime target for attacks from liberals, minorities and civil rights advocates, just as Bird came under attack from conservatives, business groups and law enforcement officials.

“There is some hostility toward the court and Lucas in the minority community,” said Robert L. Gnaizda, an attorney for Public Advocates Inc. in San Francisco, who often represents minority organizations.

“This court will have a difficult problem of how it is perceived when its decisions, even if legally well-reasoned, act to block the aspirations of the minority community,” Gnaizda said. “And it will be seen as the Lucas court because he will be seen as its leader.”