Former California Chief Justice Malcolm M. Lucas was a thoughtful, tough and gracious jurist who provided the state’s courts with a steady hand in the tumultuous time after voters ousted his predecessor, Rose Bird. He died Wednesday at age 89.
Tall and silver-haired with a baritone voice, Lucas looked and sounded like Central Casting’s image of a judge. He was intelligent and reserved, but he had a dry sense of humor, which he displayed from the bench.
Lucas was a mainstream conservative, who consistently voted to affirm death penalty judgments and generally sided with business interests. He also had an independent streak, as all good judges must have.
His death comes 30 years after he had become central to the public discourse in California. In November 1986, voters rejected three of Gov. Jerry Brown’s Supreme Court appointees – Bird, Joseph Grodin and Cruz Reynoso. Bird’s opponents used her votes against the death penalty as the primary argument against her retention, although business interests were far more concerned about Bird Court decisions that sided against them.
With Brown’s justices ousted, Gov. George Deukmejian appointed replacements, including Lucas as chief justice, giving Republican appointees a majority they hold to this day.
In their younger day, Deukmejian and Lucas were law partners in Long Beach. Dan Lungren, who later became attorney general and a member of Congress, was among their friends. In 1988, Deukmejian nominated Lungren to fill the post of state treasurer left vacant when Jesse Unruh died in 1988. The Assembly confirmed Lungren, but the Senate rejected him. In court, Deukmejian argued that confirmation by one house sufficed. Not so, the Lucas court held. Both houses needed to confirm the nominee.
“We were obviously disappointed,” said Deukmejian’s chief of staff, Sacramento attorney Steve Merksamer. “But the most important thing you want in the judiciary is honest, forthright and capable jurists, and you want independence – even from the people who may have gotten them there.”
In a new book, “The case of Rose Bird,” Kathleen A. Cairns, a lecturer at Cal Poly, writes that by 1990, the Lucas Court had affirmed 84 of 109 death penalty cases. Death penalty opponents denounced those decisions, although a flood of executions never materialized.
The issue that altered the makeup of the Supreme Court is back before the public today. On Nov. 8, voters will decide Proposition 62, to abolish capital punishment, or Proposition 66, to speed up the process. If 66 passes, death penalty abolitionists will litigate. If Lucas were still on the court, he would listen to the arguments, offer a few sage observations, and then render a decision, based on the law as he saw it.