‘Unsexy’ Cases Passed Over by Strapped High Court : Justice: Legal experts say holdups in resolving civil issues are causing confusion and uncertainty in the state’s lower courts.

SAN FRANCISCO —  Can school districts impose special taxes on developers? Must the Legislature fund abortions for the poor? Can tobacco companies be sued for smoking-related deaths? Do involuntary mental patients have the right to refuse anti-psychotic drugs? Can a hospital test new mothers for drug use and report the results to child-protection authorities?

Those are some of the provocative and far-reaching legal questions the state Supreme Court decided not to hear during the last year.

There may be sound reasons to deny review in any single case, but the collective impact of the court’s inability to decide a wide-range of issues is causing growing concern in the legal community. No one really faults the court. But two years after a special study of its congested docket, it appears the justices are still so burdened with capital punishment cases, lawyer discipline reviews and other time-consuming problems that they are neglecting important questions--particularly in civil law.

Legal experts say the resulting delay in resolving civil issues is causing increasing confusion and uncertainty in the lower courts--as judges, lawyers and litigants lack the firm and clear judicial precedents they need from the state’s highest court.

“The court simply is not taking a lot of cases critical to civil justice--it just doesn’t have the time,” said attorney Barry R. Levy of Encino. “This is a very hard-working court and it’s trying awfully hard--but there is just so much seven people can do.”

“I try to keep my rose-colored glasses on when I hear that very few civil cases are going to get the court’s attention,” Beverly Hills lawyer Pamela E. Dunn said after the justices refused to hear her appeal of a novel sex-harassment decision against a Long Beach physician. “But it looks more and more like that’s going to be the case. And that’s very sad for all litigants.”

Attorney Leonard Sacks of Encino noted that in such fields as personal injury, property loss and insurance coverage, the court has refused to hear dozens of appeals, while at the same time preventing the lower-court ruling in similar cases to be used as precedent. “This leaves everyone in a quandary,” Sacks said. “I admit this is not a sexy area of the law, but it does affect a lot of people.”

Chief Justice Malcolm M. Lucas, through an aide, denied that a backlog of capital punishment cases is having an adverse impact on the court or that important civil issues are suffering from neglect.

The court may grant a review with a minimum of four votes from its seven members. The reason for denial is not announced--but it may mean that the justices essentially agree with the lower-court ruling or that they want an issue to “percolate” more in the lower courts, the aide noted.

Lucas, however, did allude to the caseload problem in his State of the Judiciary address to the Legislature recently, when he underscored one aspect of the system that has remained unchanged since 1879--the size of the state Supreme Court.

“There were seven justices then and there are seven justices now,” he told the lawmakers. “In that time, however, the numbers of people, of lawyers, of cases filed and of lower court judges have increased exponentially.”

Lengthy and complex capital cases continue to flow steadily into the high court--and despite a record output of 88 death-penalty decisions by the justices since 1987, they still face a staggering backlog of 185 such cases. That exceeds the capital caseload that existed in 1987 when Lucas replaced former Chief Justice Rose Elizabeth Bird, who was defeated by the voters in the wake of an angry attack on the Bird court’s reluctance to uphold death sentences.

Moreover, as the court awaits implementation of a new State Bar professional discipline system, the justices have been forced to hear arguments in 46 relatively insignificant lawyer disbarment and suspension proceedings representing a disproportionate 50% of their calendar over the last year.

Adding to the problem are the inherent delays caused by recent changes in the court’s membership and the justices’ implementation of new internal operating procedures. And all that was further complicated by the devastating Oct. 17 earthquake that forced the court into cramped, makeshift quarters and forced postponement of a month’s slate of cases to be argued.

Meanwhile, California’s population continues to surge upward--and with it, the number of cases working their way through the state’s vast court system. Last year, total case filings reached nearly 18 million--almost double the number 25 years ago.

Lucas, in defending the court, points to a series of changes in internal procedures that promise long-term results.

“The Supreme Court is in the process of assimilating a number of major changes, both in its internal operations and membership,” he said in a statement in response to questions from The Times. “It has no immediate plans for additional modifications. Nonetheless, as has long been the case, the court remains receptive to changes that will help it fairly and expeditiously handle its workload.”

Legal experts say such changes are needed but see little prospect of immediate reform. For one thing, a major revision in the way death-penalty cases are reviewed--such as routing them through the Courts of Appeal for much-needed refinement of the issues before they get to the high court--would require an amendment to the state Constitution. Making any such change in the law is arduous in itself, and the task would be doubly complicated by the volatile nature of capital punishment.

“The court cannot be expected to involve itself in a political controversy,” said Shirley M. Hufstedler, a Los Angeles attorney and former federal appeals court judge who served on the study commission. “There has to be some leadership shown here . . . by the bar, the Legislature and the public. But we all know the death penalty is such a hot topic emotionally and politically that nobody wants to tackle it.”

Other authorities say the justices should take the lead and ask for changes in death-penalty procedures that would streamline the process. “Nothing will happen until the court itself gets on the bandwagon,” said Gerald F. Uelmen, law dean at Santa Clara University.

There are warnings that without additional reforms, the capital caseload by itself will discourage aspirants to the high court. Justices John A. Arguelles and Marcus M. Kaufman have chosen to retire despite serving on the court less than three years. Although neither publicly cited the caseload as the reason for stepping down, both acknowledged that the load was a difficult one for the court.

“The burden is very, very heavy at the Supreme Court,” says State Court of Appeal Justice Harry Low of San Francisco, another commission member. “Five years from now, 10 years from now, will anyone want to subject themselves to that huge volume of work all the time? Some new methods have to be looked at. . . . If you spend all your energy on death cases, civil cases have to be neglected.”

Soon after he became chief justice, Lucas appointed the 10-member commission of judges and lawyers to study court procedures and recommend steps to speed the work of the justices.

The panel came back with 17 recommendations for change--most of them technical and undramatic but welcomed by the court nonetheless. Since then, in line with commission suggestions, the court has adopted new internal procedural deadlines, installed additional computer technology and bolstered its staff of research attorneys.

Since January, 1989, the court at its own initiative has followed a new system in which it issues decisions within 90 days after cases are argued. The aim is to give the justices more time to distill the issues in a case before argument--and then to provide a reasonably prompt decision. “The court believes the new procedures may ultimately result in a speedier disposition of cases,” said Lynn Holton, the court’s public information officer.

But despite the innovations, there is little indication that the court’s burdens are becoming significantly lighter.

Shortly after Lucas became chief justice and three new appointees of Gov. George Deukmejian joined the court in early 1987, the justices began a ferocious attack on the backlog of capital punishment cases they receive on automatic appeals from the state’s trial courts.

In full swing by 1988, the Lucas Court decided a record 56 death-penalty cases. In 1989, the pace slackened, but the court still turned out 27 death-penalty decisions. Nonetheless, as death verdicts continue to stream in from the trial courts, the backlog of such cases reached 185 at the end of January--a net increase of 14 from the 171 that were pending when Lucas took over from Bird nearly three years ago.

There has been some progress in reducing the backlog of civil and non-capital criminal cases. In February, 1987, there were 211 such cases awaiting decisions; currently there are 142. But cases continue to stream into the court at the rate of up to 180 a week--triple the load of 25 years ago. And the justices must spend up to 50% of their time simply determining which of these cases to review.

By mid-1989, the revamped court was turning out decisions at generally the same rate of the court under Bird. But a study by law dean Uelmen, published in the California Lawyer, showed a significant change in the nature of those decisions.

In Bird’s final year, 50% of the court’s opinions came in civil cases. In the following two years under Lucas, that percentage dropped sharply to 33%, and then 29%, Uelmen’s research showed.

By the same token, Uelmen’s study revealed that the Lucas Court has made far greater use of the process known as “depublication,” in which the justices allow an appeals court decision to stand for the parties in a particular case but bar the ruling from being used as precedent.

The process allows the high court to effectively erase a decision from the lawbooks without having to grant review, hear arguments and write its own decision. While the Bird court depublished 114 cases in its final year, the Lucas Court raised that number to 126 and 142 in the next two years, Uelmen’s study showed.

Depublication is defended as a necessary tool for a high court that cannot possibly grant a review in every case it would want to hear from the state’s far-flung, 88-member state Court of Appeal. But many legal experts say heavy use of the device is bound to create uncertainty in the lower courts.

“That’s not the way to run a railroad,” said attorney Hufstedler. “But the court can’t take on enough of these cases in order to harmonize the law. The capacity just isn’t there to do it.”

On another front, the current court finds itself still saddled with professional discipline cases in which lawyers are contesting recommendations by the State Bar for their suspension or disbarment. Critics have long urged that such relatively routine cases be handled in a different process.

The special commission, chaired by retired state Supreme Court Justice Frank K. Richardson, recommended that instead of sending bar-discipline cases directly to the high court, such cases be transferred for review by the state Court of Appeal.

The Legislature responded by changing the law to permit such transfer. But the State Bar asked the high court to maintain its jurisdiction while the bar implements a new disciplinary system--including a recently organized State Bar Court that ultimately will issue decisions the high court can let stand without conducting its own review.

In the meantime, the justices are still hearing and deciding an inordinately high number of lawyer-discipline cases that, although of importance to the parties and profession, have little broad impact. By unofficial count, of the 149 rulings issued by the state Supreme Court since January, 1989, 46 have involved lawyer suspensions and disbarment.

Holton, the chief justice’s spokeswoman, said that before relinquishing jurisdiction in such cases, the high court wants to monitor the progress of the new State Bar Court, which began operation only last fall. Holton noted that the State Bar asked the justices to retain jurisdiction, at least for now, to ensure consistency in the law governing lawyer discipline.

Necessary or not, there is little indication the justices relish spending time reviewing appeals by lawyers who want to avoid professional punishment. “I don’t know why they need a State Bar Court,” one court member recently remarked ruefully. “They’ve got one right here at the Supreme Court.”