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Getting a different perspective on courts

By Diane Curtis
Staff Writer

Former Gov. Pete Wilson made a plea for renewed adherence to the separation of powers. Three state chief justices lamented the politicizing of judicial campaigns. And luminaries from throughout the legal profession tackled such topics as same-sex marriage, the death penalty, family law, mandatory arbitration and application of freedom of speech.

Pete Wilson

The setting was the University of California Clark Kerr campus for what was billed as the first conference on the California Supreme Court sponsored by the court and UC-Berkeley School of Law.

"I think the conference went very well," said Chief Justice Ronald George. "Ninety-eight percent of all cases are decided in the state courts, and it was worthwhile and illuminating to focus on the work of the California Supreme Court, whose decisions are the most followed by other courts of all the state high courts in the nation," George said. "The conference provided an opportunity for the justices and other judges and lawyers to hear different perspectives on the work of the courts."

Wilson, keynote speaker for the daylong event, took a jocular jibe at the court even as he talked of judicial appointments as being a governor's most important legacy and before he launched into more serious topics. Noting that he had appointed five of the seven current Supreme Court justices to either the high court or another court, he recalled that the court had determined that a term-limits initiative amounted to a lifetime ban against a politician running for the same office. "I've been waiting to tell them something, and it's this," Wilson said. "You ungrateful bastards!"

He got a big laugh from a crowd of about 150, including George and other justices.

Getting down to business, Wilson, who is now a partner in the Los Angeles office of Bingham McCutchen LLP, said he did not believe the importance of judicial restraint could be overstated. Judges "should not violate the doctrine of separation of powers" by setting policy, Wilson said. "They should not go beyond their role as judges." But he also said that the legislature and executive branch must be equally vigilant not to assume a role not assigned to them in the constitution, and the judiciary must monitor the legislature when it tries to take an executive role. "There's an increasing tendency to ignore the separation of powers," Wilson said. "That is not a healthy thing."

Former Attorney General John Van de Kamp, who chaired a bipartisan state commission that drafted recommendations to revamp the capital punishment system, led off a panel discussion of the death penalty. "The death penalty system is dysfunctional," said Van de Kamp, who is also a former president of the State Bar. He reeled off a host of statistics: it takes about 25 years from judgment to execution in California, double the national average; just to carry out the death sentences of inmates currently on Death Row would require five executions a month for 11 years, and 240 new death sentences are expected over the next 12 years; it costs $90,000 more a year to house a Death Row inmate than other prisoners.

Other panelists noted the dire shortage of lawyers available to represent capital offenders. Those who want the death penalty are going to have to find the money to pay for a fair and credible system, said Van de Kamp. His panel estimated that it would take an extra $100 million a year for a more efficient appeals process. But Dane Gillette, chief assistant attorney general for the California Department of Justice, said he is skeptical about claims of cost savings by eliminating the death penalty, noting in one instance that Death Row inmates would not be put in the general population. And he said some of the burden of hearing death penalty appeals could be alleviated by adopting a proposal broached by Chief Justice George this past year to transfer some death penalty cases to the appellate courts.

In another panel discussion, Chief Justices Thomas Moyer of Ohio and Christine Durham of Utah and former Chief Justice Thomas Phillips of Texas lamented the politicization of judicial campaigns, such as demanding that judges say how they would vote on controversial cases that might come before them, scurrilous attack ads that come from broad, unidentifiable Political Action Committees and the public perception that campaign contributions influence judicial decisions. Durham said that Utah has avoided some of the pitfalls with "merit selection" for state judges, in which a commission recommends appointees, the governor chooses the appointees and the legislature confirms them. In addition, judges are evaluated every two years and voters decide only whether to retain a judge when a term ends. Moyer said an Ohio system in which individuals who donate to PACs must be identified has eliminated a person's ability to be part of an attack ad and yet not be held accountable. The result has significantly cut down on negative ads. Phillips said that despite free speech rulings allowing people to ask judges questions about what they would do as a judge, he has found the best answer is, "All I promise you is I'll try to do a good job."

A panel on same-sex marriage was mild. Kenneth Starr, dean of Pepperdine University School of Law who had filed a brief arguing against same-sex marriage, called it "the defining issue of our time . . . It may be the most important decision handed down in the United States by any court," he said. But he did not engage in an argument on its merits and instead ended up reading both concurrences and dissents from the landmark May ruling. Gerald Uelmen, professor at the Santa Clara University School of Law, however, hinted that the justices would not be able to overturn Proposition 8, which bans gay marriage. Proposition 8 opponents have argued that the measure was an improper revision, rather than a simple amendment, to the constitution. "The court is not ready to admit it has the ability to revise the constitution," Uelmen said.

George said he hopes the conference will become a regular event. "We look forward to next year holding an oral argument in connection with our ongoing cooperative efforts with the University of California Berkeley Law School and our regular educational outreach sessions. We consider these conferences as one important way to get scholars and others interested in the state's legal system so that they will devote more attention to state court operations and their significant role in the administration of justice."

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