Supreme Court Justice Kaufman Will Retire : Judiciary: He served on state high court less than three years. Wants to spend time with family, he says.

SAN FRANCISCO —  Justice Marcus M. Kaufman, a conservative, outspoken and sometimes unpredictable member of the California Supreme Court, announced Friday he will retire at the end of January after less than three years on the court.

In a letter to Gov. George Deukmejian, Kaufman, 60, cited a “myriad of personal reasons” for stepping down--primarily a desire to spend more time with his family.

The justice, sworn in as a member of the high court in March, 1987, after 17 years on the state Court of Appeal, noted that he had undergone surgery for colon cancer two years ago.

“While follow-up tests have all been excellent, such an experience brings one face to face with the fact of our mortality and argues persuasively against continuing in work so demanding that little time exists for family life or recreation,” he said.

Kaufman’s retirement had been widely rumored in recent months but the justice had declined comment until Friday. He is the second Deukmejian appointee to decide to retire after relatively brief service on the Supreme Court. Last March, Justice John A. Arguelles stepped down at age 61 after two years on the high court and 25 years on the state judiciary.

By retiring in January, Kaufman will have completed 20 years as a judge and thus be eligible for enhanced pension benefits.

It will also enable Deukmejian to choose a like-minded and perhaps younger successor who could serve far longer. The governor thus could leave his imprint on the high court for many years beyond his own tenure, which will end in January, 1991, after eight years in office.

Deukmejian followed this pattern when he selected Appellate Justice Joyce L. Kennard, now 48, to succeed Arguelles earlier this year. Legal authorities say the governor is likely to consider such candidates as Ronald M. George, 49, and Reuben A. Ortega, 47, both former prosecutors and trial court judges now serving as justices on the state Court of Appeal in Los Angeles.

When Deukmejian was seeking a successor for Arguelles, he also considered Appellate Justices H. Walter Croskey, 56, Los Angeles; Fred H. Marler, 57, Sacramento; and Patricia D. Benke, 40, San Diego. Benke, however, was reluctant to move or commute to the court’s headquarters in San Francisco from her home and may no longer be in the running for the high court.

Whoever the governor does choose is not likely to have a dramatic impact on the philosophical balance of the court. For decades dominated by judicial liberals, the court underwent a marked ideological shift after the 1986 election in which the voters refused to retain three court liberals--Chief Justice Rose Elizabeth Bird and Justices Cruz Reynoso and Joseph R. Grodin.

The Republican governor then named Kaufman, Arguelles and Justice David N. Eagleson to the court. While its voting alignment often shifts from case to case, the court generally is viewed as including five Deukmejian-appointed conservatives--including Kaufman, Kennard, Eagleson, Chief Justice Malcolm M. Lucas and Justice Edward A. Panelli--and two liberals, Justices Stanley Mosk and Allen E. Broussard, appointed by Democratic Govs. Edmund G. (Pat) Brown and Edmund G. Brown Jr., respectively.

Kaufman was expected to be among the most conservative of the Deukmejian appointees, but he has proved to be something of a judicial maverick. While frequently joining the majority in upholding the death penalty and limiting the rights of criminal defendants, he broke ranks and joined liberals in some important civil rulings.

He wrote majority opinions when the court permitted police to erect roadblocks to catch drunk drivers and allowed a corporate farm to restrict the access of union organizers to workers camps on its property.

But he disagreed with far-reaching high court rulings that restricted wrongful-termination suits against employers and barred the use of state antitrust laws against corporate mergers.

“Kaufman’s been an independent, free-thinking justice, pretty much at the center of the court,” said UC Berkeley law professor Stephen R. Barnett, a close observer of the justices. “He’s been a bundle of sometimes conflicting streaks . . . He’s backed the little guy against employers, unions, the government, the State Bar and even a church. On the other side, he has showed sympathy for insurers and growers he apparently thinks were victims of liberal bias.”

Barnett speculated that Kaufman’s retirement could be linked, at least in part, to the court’s heavy backlog of death penalty cases. While the court under Lucas has trimmed its overall caseload from 382 to 314, the number of capital cases pending has increased from 171 to 180. Although the justices have worked hard to decide such cases--issuing 60 death-penalty affirmations and 24 reversals in little more than two years--capital appeals continue to stream into the high court.

Like other court experts, Barnett gave high marks to the craftsmanship of Kaufman’s writing and research. But he also cited a “streak of intemperance” in some opinions and Kaufman’s sometimes relentless and bellicose questioning of attorneys before the court. “The scholarly quality of his opinions has been high, but he would have benefitted from lowering his voice, both during oral argument and in some of his writing,” the professor said.

In a recent opinion, Kaufman issued one of the sharpest attacks in memory, criticizing a dissent by Broussard that had accused the majority of failing to show “any awareness” of the impact of its rulings on jury selection and racial bias. Kaufman accused Broussard of an unjustifiable attack “on the motives and integrity” of the court and of violating a judicial tradition of avoiding personal accusations in opinions.

Ironically, Kaufman’s feisty questions and opinions contrast sharply with his open and friendly manner off the bench. For example, less than a week after he strongly criticized Broussard, he was seen chatting amiably with Broussard at a public appearance the justices made at Santa Clara University Law School.

Lucas, in a statement, hailed Kaufman’s written opinions as “consistently concise yet complete, compassionate yet practical.” Kaufman’s questions during oral argument are “keen, incisive, provocative and stimulating,” the chief justice said.

“I am grateful to Justice Kaufman for all his endeavors, and I wish him a successful and prolonged retirement,” Lucas said. “He certainly has earned it.”

In his letter to Deukmejian, Kaufman said he hoped the governor would appoint a successor within 30 days of the justice’s retirement. Kaufman added that he would stay on the court beyond that time, by special assignment, to complete work on pending cases in which he has participated.

A spokesman for Deukmejian said the governor was unavailable for comment. But it was believed that, as in the past, Deukmejian will send a list of potential candidates for a non-binding review and evaluation by a special commission of the State Bar and then select one of those candidates as his nominee.

The governor’s choice then would be sent to the state Judicial Appointments Commission, made up of Lucas, state Atty. Gen. John K. Van de Kamp and Justice Lester W. Roth, senior presiding justice of the state Court of Appeal. If confirmed, as is likely, the nominee would be sworn into office.

Kaufman acknowledged that the work on the court had been “arduous” but he praised his colleagues and the court staff for helping make his tenure “the most thrilling, stimulating professional experience of my life.”

He said he had no definite plans, but hoped to perform some writing, teaching and practice of law. He added that he plans to “speak out occasionally on issues of significance” involving the court and the administration of justice.

Under Lucas’ tenure, there has been “much progress” in the morale and attitude of the justices and their staffs, Kaufman said. “In large measure public respect for and confidence in the court has been restored, and I am very proud to think that I have played some small part in that important achievement.”

The justice added, however, that the court was being deprived of “essential facilities and amenities.” Since the Oct. 17 earthquake, the court’s work had been disrupted and the justices have been left with “even less adequate quarters than before,” he said.