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4 Justices Asked to Withdraw From Case : Insurance: Group alleges the appearance of impropriety in matter involving former Gov. Deukmejian, who appointed the judges. Such charges are insulting, jurist says.


SAN FRANCISCO — In an extremely rare move, a consumer coalition on Thursday asked the majority of the California Supreme Court to disqualify itself from voting on an insurance case because of an appearance of impropriety.

The groups asked four justices to step aside because former Gov. George Deukmejian, who appointed them, is representing an insurance company that has a stake in the case's outcome.

Justice Armand Arabian, a Deukmejian appointee, was indignant at the suggestion of possible impropriety. "Without reference to any particular case," he said in an interview, "it is insulting and at its core attacks the integrity of the justices."

The request was made by a law firm on behalf of Voter Revolt, which sponsored a successful 1988 initiative to roll back insurance rates, along with several consumers groups and two state legislators.

Asked to remove themselves were Arabian; Chief Justice Malcolm Lucas, Deukmejian's former law partner; Justice Marvin Baxter, his former appointments secretary, and Justice Joyce Kennard.

It is up to each justice to decide whether to step aside.

Court analysts said the justices' appointments by Deukmejian were not enough to give rise to an appearance of conflict.

When a case involving former President Richard M. Nixon's refusal to release the Watergate tapes went to the U.S. Supreme Court, three Nixon appointees on the court reviewed it. Only Justice William Rehnquist, who had been in Nixon's Justice Department, removed himself from the case, USC law professor Erwin Chemerinsky said.

"In that sense, I think Marvin Baxter is in a different position, because there was a recent close business relationship," said Chemerinsky, who teaches legal ethics.

Baxter could not be reached Thursday, and a court spokeswoman said the court would have no official comment on the request.

He previously refused to excuse himself from another case involving Deukmejian.

Baxter and three other Deukmejian appointees ruled in 1991 that the Los Angeles Times could not compel Deukmejian to make his appointment calenders public. Kennard dissented, ruling against the governor who appointed her.

The Times' lawyers had asked Baxter to remove himself from the case. In declining, Baxter noted that he had not advised the governor on the calendars and the court's decision would affect other governors as well.

Although appointment alone should not raise a conflict, Chemerinsky said, "If there is an ongoing close personal friendship, the judges would be better not sitting."

The insurance industry wants the high court to uphold a bill signed into law by Deukmejian that exempted surety insurance companies from rollbacks imposed by Proposition 103.

Surety companies provide bonds to contractors, movie studios and others so they can guarantee that their projects will be completed. If subject to Proposition 103, the surety industry may have to rebate as much as $100 million.

Deukmejian represents Northridge-based Surety Co. of the Pacific, which is supporting the main litigant, Amwest Surety Insurance Co. He wrote the court a letter asking it to review the case, and a majority of the justices later voted to do so. Surety Co.'s president had contributed heavily to Deukmejian's campaigns.

Gerald Uelmen, dean of the University of Santa Clara Law School and a frequent critic of the court, said he doubts the justices would remove themselves from the case.

He said justices excuse themselves if they have a personal interest in the outcome of a case or a personal relationship with participants in it.

"Following a rule like this would say once you have been governor, you can't practice law," Uelmen said.

The danger in making such a request is that it could anger the justices and "cause them subconsciously to rule against" the consumer groups, Chemerinsky said. On the other hand, it also may make them "more careful than they otherwise might be."

In the letter to the justices, lawyers for Voter Revolt cited a state code that says disqualification is appropriate when "a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial."

"Although you did not create this appearance," the attorneys wrote, "Voter Revolt believes that the only way to eliminate any appearance of impropriety is for each of you to recuse yourselves."

The group wants the Deukmejian appointees to be replaced by Court of Appeal justices chosen randomly.

Among those also supporting the request were the Center for Public Interest Law, Consumer Action, Assemblyman Burt Margolin (D-Los Angeles) and state Sen. Art Torres (D-Los Angeles.)

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