Members of High Court Face Ouster Attempt

Anti-abortion activists target two Republican state justices who are raising money and fighting hard for retention.

October 18, 1998|MAURA DOLAN | TIMES LEGAL AFFAIRS WRITER

SAN FRANCISCO Amid a climate of political uneasiness within the state's judiciary, two members of the California Supreme Court have been quietly raising money and traversing the state to fend off an assault by anti-abortion activists who want them ousted from the state high court.

Chief Justice Ronald M. George and Associate Justice Ming W. Chin, both Republicans, face the first challenge against Supreme Court justices in 12 years.

At first glance, there might seem little for the justices to worry about. Both George and Chin have raised substantial amounts of money--far more than the groups that oppose their retention. And California voters have only once in history actually removed a Supreme Court justice from office--in 1986 when voters booted former Chief Justice Rose Elizabeth Bird and two colleagues because they perceived them as too lenient on the death penalty.

What worries the justices is that, in recent elections, support for appellate judges seeking retention has waned across the board, whether they have opposition or not. Members of the judiciary are increasingly apprehensive that any organized opposition could be enough to topple them.

"There has been a percentage over the years who always vote against the judges," said Mike Spence, spokesman for the campaign against George and Chin and a director of a state anti-abortion group. "Our goal is just to communicate with enough people to swing it over the top."

Two years ago, some appellate court justices barely squeaked by. The margin of approval for all state appellate justices dipped from an average of 76.8% in the 1980s to 60.1% in 1994.

Supreme Court and state Court of Appeal justices must stand for retention in the first gubernatorial election after their appointment. After that, they stand for retention every 12 years. About 40 of the state's 93 Court of Appeal justices will be on the ballot this fall. A justice must receive more than 50% of the vote to remain in office.

No one knows for certain why the support for judicial retention has declined, but explanations abound. The votes against justices are attributed to general dissatisfaction with the criminal justice system, voter anger over individual verdicts or rulings by other judges--including appointed federal jurists--and opposition to lengthy terms.

In recent elections, justices with an ethnic name or those who were being retained to a full 12-year term received the most "no" votes.

"If they can't pronounce your name, [voters] think you are some undesirable alien or something," said Justice Marc Poche, who serves on the Court of Appeal in San Francisco and who saw his retention vote fall substantially in 1994.

State judges have campaigned and won changes on election materials that may make their retention easier this time around. Most notably, the ballot will not say the length of the term of office a justice is seeking.

With the margin of approval declining, a concerted campaign can have a big impact. Abortion opponents claim they will distribute as many as 6 million pieces of literature--including slate cards--and run radio advertisements against George, 58, and Chin, 56.

Even as the justices anxiously await the balloting, court observers are looking ahead to the aftermath of the election. Because the governor appoints state judges, the state's next governor will have a major impact on the judiciary.

The biggest change would come if the Democratic candidate, Lt. Gov. Gray Davis, is elected. The state has had Republican governors for 16 years, so the vast majority of sitting judges are Republican appointees.

If a spot opened on the state Supreme Court, most observers expect that Davis would try to avoid the sort of controversial nominees that roiled the tenure of the state's last Democratic governor, Edmund G. "Jerry" Brown Jr.

"I think Davis would be very careful about going the Jerry Brown route," said a Republican appointee on the appellate bench. "Like Bill Clinton, Davis would appoint centrist, moderate Democrats, nobody too controversial."

But even moderate Democrats would probably steer the court to the left of its current stance. Judging by his positions on legal issues, Davis appointees would be more likely to rule for plaintiffs and against business defendants than the appointees of recent Republican administrations have been.

Republican candidate Dan Lungren, the state attorney general, would be expected to appoint judges he considers conservative Republicans, jurists who would be more likely to rule for the defense than plaintiffs in civil cases and for prosecutors in criminal matters.

Although he has said he opposes a litmus test on abortion, Lungren has expressed his anti-abortion views at confirmation hearings of Supreme Court justices. He voted to confirm both George and Chin, although he has refused to endorse them for the election.

The fight over George and Chin began last year when they voted to strike down a never-enforced state law that would have required girls 17 and younger to obtain a parent's or judge's permission to have an abortion.

Under former Chief Justice Malcolm Lucas, the high court had upheld the law but the court decided to reconsider the case. Anti-abortion advocates publicly threatened to mount an effort to recall the justices if they struck the law down.

The court, in an opinion by George, decided by a 4-3 vote that the law violated privacy guarantees in the state Constitution.

Spence, spokesman for the anti-retention campaign, assails George and Chin as "liberal activist judges," a label that probably would astonish liberals who follow the court.

Both justices were appointed by Gov. Pete Wilson and are moderate-to-conservative Republicans who vote to uphold most death sentences and usually side with prosecutors in criminal cases. Both are former prosecutors who were appointed to lower-court positions by former Gov. George Deukmejian, a Republican.

George has moved the court in a more centrist direction since Wilson elevated him to chief justice in 1996. Albeit still generally conservative, the court during the past two years has been more willing to rule for workers, victims of discrimination and other plaintiffs in civil cases.

While George is probably at the court's center, Chin is to the right of him. Both justices are independent and sometimes difficult to predict. A state bar judicial evaluation committee rated them exceptionally well-qualified, the highest ranking a justice can obtain for the post.

Justices Stanley Mosk, 86, and Janice Rogers Brown, 49, also will appear on the ballot, but neither faces opposition or has campaigned. Both voted to uphold the parental consent law.

Mosk is the only Democrat and the most liberal justice on the court, although he also has written some of the court's more conservative rulings in high-profile cases. He is one of court's prolific writers of opinions.

Brown is the court's most conservative judge. Wilson appointed her to the Supreme Court in 1996.

The state judiciary and bar, worried by what they see as an attack on judicial independence, have embraced George and Chin. So too have some of those who spearheaded the opposition to Rose Bird and her colleagues, including Deukmejian.

But to save their seats, both justices have hired experienced campaign operatives who have produced literature that highlights their conservative credentials as much as their independence.

George has raised $601,000 from businesses, attorneys and judges, and Chin has collected $572,000 from lawyers, judges and other Asian Americans. Both jurists said they have returned contributions from lawyers or litigants with cases before the court.

By contrast, the committee to remove George and Chin has raised only about $20,000 and an $8,000 nonmonetary contribution of radio advertisements.

In a leaflet designed to deflect opposition from the most conservative wing of the Republican Party, George's campaign boasted that he is "a strong supporter of the death penalty" who has "overturned liberal decisions by Rose Bird" and closed "loopholes exposed by criminal defense attorneys."

Although the leaflet accurately reflects George's rulings, it leaves the impression that he is an ideological conservative, which he is not, and it offended some liberals. One of Chin's campaign documents begins with a recitation of cases in which he supported the death penalty.

In the meantime, the judicial anxiety goes beyond the Supreme Court justices to encompass many on the Court of Appeal, as well. In Los Angeles, appeal court jurists have raised $200,000 even though they face no organized opposition.

One incident that sparked concern was a survey from the Anaheim-based Traditional Values Coalition, which represents conservative Christian causes.

The survey, mailed to all of the Court of Appeal justices who will appear on the ballot next month asked, among other questions: Were you ever a member of the American Civil Liberties Union?

The justices in Los Angeles, San Francisco, Ventura and San Jose declined to respond. The justices who did respond are listed on a voter guide distributed to 1.5 million Californians. They all expressed conservative sentiments.

The Rev. Louis P. Sheldon, chairman of the coalition, said he was surprised that so many justices declined to answer.

But some judges argue that such questions are inappropriate, noting that judges are supposed to be able to put aside personal positions and are bound by precedent.

"If the Supreme Court says the sky is green today--and even though I look out and the see the sky is blue--I enforce the green law," Poche said.

Contributing to this story was Times researcher Norma Kaufman.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Candidate Profiles

Ronald M. George

* Position: Chief justice of California.

* Education: Stanford Law School, 1964. Graduated 1961 from Woodrow Wilson School of Public and International Affairs, Princeton University.

* Career highlights: Appointed to the Supreme Court in 1991 by Gov. Pete Wilson and elevated to chief justice in 1996. Deputy state attorney general. Named to L.A. County Municipal Court by Gov. Ronald Reagan in 1972. Elevated to L.A. County Superior Court by Gov. Edmund G. Brown Jr. in 1977. Served as president of California Judges Assn., 1982-83. Named to state Court of Appeal by Gov. George Deukmejian in 1987.

****

Janice Rogers Brown

* Position: Associate justice, California Supreme Court.

* Education: UCLA School of Law, 1977. Graduated in 1974 with bachelor's in economics, Cal State Sacramento.

* Career highlights: Appointed to California Supreme Court by Wilson, 1996. Deputy attorney general, state Department of Justice, 1979-87. Deputy secretary and general counsel, California Business, Transportation and Housing Agency, 1987-89. Private practice in Sacramento with the law firm of Nielsen, Merksamer, 1989-91. Legal affairs secretary in Wilson's Cabinet, 1991-94. Appointed an associate justice of state Court of Appeal by Wilson, 1994.

****

Ming W. Chin

* Position: Associate justice, California Supreme Court.

* Education: University of San Francisco School of Law, 1967. In 1964, completed undergraduate studies UC San Francisco in political science.

* Career highlights: Appointed to the California Supreme Court by Wilson in 1996. Deputy district attorney, Alameda County, 1970. Appointed by Deukmejian to Alameda County Superior Court, 1988. Named by Deukmejian to 1st District Court of Appeal, 1990.

****

Stanley Mosk

* Position: Associate justice, California Supreme Court.

* Education: Southwestern University School of Law, 1935. University of Chicago, 1933, bachelor's.

* Career highlights: Appointed to California Supreme Court, 1964, by Gov. Edmund G. Brown Sr. Legal assistant to governor of California, 1939-43. Judge, Superior Court, Los Angeles, 1943-1958. Pro temp justice Court of Appeal, 1954. Attorney general of California, 1959-64.