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.
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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