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Kaufman Cites 'Good Sound Judgment' of Realigned Panel : High Court Expected to Blaze Fewer Trails

September 01, 1987|PHILIP HAGER | Times Staff Writer

SAN FRANCISCO — Rather than blaze new judicial trails, Justice Marcus M. Kaufman expects the newly aligned state Supreme Court to try to restore public confidence by showing "good sound judgment" in its decision-making.

"I do not equate a good court necessarily with one that is on the cutting edge of the law," Kaufman said in an interview last week. "What is needed are good, well-reasoned decisions that can be understood and respected by the great majority of the population."

Kaufman, regarded as the most scholarly and conservative of the three new justices appointed by Gov. George Deukmejian, stood by criticism he made previously of the liberal-dominated court under former Chief Justice Rose Elizabeth Bird.

Many of the old court's decisions were "not soundly reasoned," he said. "The fact that the public lacked confidence in the court was self-evident from the election," he said, referring to the defeat of Bird and two other court members in the bitterly fought fall campaign.

Kaufman, who served 18 years on the state Court of Appeal as an appointee of Gov. Ronald Reagan before his elevation to the high court last spring, discussed a wide range of subjects in the first full-scale interview granted by one of the three new justices.

Among other things, he urged changes in the judicial appointment and confirmation system; suggested that appellate courts play a role in deciding death-penalty cases; said state courts should defer to federal courts on certain constitutional issues, and spoke enthusiastically of the "open-mindedness" and tension-free atmosphere he has encountered on the new court.

As is customary, he did not discuss pending issues or cases before the court.

For the 58-year old Kaufman, his appointment to the state Supreme Court represents something of a homecoming. Thirty-one years ago, after completing law school at USC, he served as a clerk at the court for Justice Roger J. Traynor, who later became its widely respected chief justice.

Sitting in shirt-sleeves in his newly refurbished chambers with photographs of Traynor and Reagan on the wall, Kaufman recalled with a smile when one of the justices often came to work in a bright Hawaiian shirt--and when most of the court staff set aside its work one day to cluster around a television set to watch Don Larsen of the New York Yankees throw a perfect game in the World Series.

"This hallway is the same as it was 31 years ago," he said, gesturing toward the fourth-floor corridor. "There was much nostalgia in coming back."

Kaufman has joined the court at the end of an era in which it drew wide attention and considerable controversy as one of the most liberal and innovative state courts in the nation.

Many landmark decisions were based on its own independent analysis of the state Constitution, rather than U.S. Supreme Court rulings on the federal Constitution. In several instances, the state court extended greater protections to criminal defendants and other individuals than required by the federal court.

The new court is expected to be more conservative, and to more often defer to the U.S. Supreme Court. In the interview, Kaufman stressed his view that the new court should look to established legal principles rather than seek "new vistas" for their own sake.

Asked what he expected from the new court, he replied: "Good solid judgment. . . . A realization on the part of the justices that they are making law for the whole state that has to be respected."

Kaufman also expressed reservations about the doctrine of "independent state grounds," which was often invoked by the court previously.

Vitality of Constitution

Generally, he said, he believes that while the state Constitution has "independent vitality," the state court should follow the U.S. Supreme Court where provisions of the state and federal Constitutions are substantially the same.

"When the provisions are identical or very similar, it causes consternation to the public and engenders lack of confidence when (the court) interprets it in a different way than the federal court or, indeed, in an opposite way. That can't engender respect."

In other instances, he said, it is "entirely appropriate" to consider independent state constitutional provisions in deciding a case.

Kaufman said he expected the new court to give greater deference to state trial and appeal court rulings, saying it "perhaps is going to be true" that the new court will be less inclined to overturn convictions because of procedural errors at trial.

The justice also discussed these subjects:

- COURT OUTPUT. The heavy case backlog and the inherently complex transition has substantially slowed the new court's output of decisions, he said. "I'm sure people must wonder, 'We've got this newly composed court--where are all the decisions?' "

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