Re: [EL] Rose Bird, the death penalty, & redistricting

My recollection is that the public campaign against Rose Bird focused on her death penalty decisions, but the money to pay for those messages against her came from organizations that opposed her court's business and products liability decisions � for example, Becker v. IBM (1985), which held landlords strictly liable for injuries to tenants due to defective products in their apartments, regardless of landlord negligence.

In other words, the rhetoric against Bird and the two other ejected justices (Reynoso and Grodin) was "soft on crime and the death penalty," but the money and motivation to pay for those messages was "too tough on products liability."

Incidentally, the Supreme Court significantly reversed Becker in a 1995 ruling, Peterson v. Superior Court, holding that strict liability no longer protects tenants injured by defective products incorporate into landlords' properties.

____________________________

Tracy Westen

Chief Executive Officer

Center for Governmental Studies

10951 West Pico, Blvd., Suite 120

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Fax: 310-475-3752

Web: www.cgs.org
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From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Douglas Johnson
Sent: Tuesday, November 02, 2010 9:56 AM
To: election-law@mailman.lls.edu
Subject: Re: [EL] Rose Bird, the death penalty, & redistricting

While the campaign against Bird focused on her clear opposition to the death penalty in open defiance of the state constitution, it's worth remembering among participants on this list the original trigger for seeking her ouster: her decision in 1981 to let gerrymandered redistricting plans stand despite the qualification of a referendum against them. Instead of appointing a special master to draw a temporary plan for use in the 1982 election (as the Court did during California's 1973 redistricting deadlock), Bird went directly against the clear wording of the state constitution's referendum language when she put the legislature's adopted (and Gov. Brown signed) 1981 redistricting plan in place. Off the top of my head, I believe the net result of her decision in 1982 was a Democratic pickup of 5 California Congressional seats (which the late-1982 bipartisan incumbent protection re-redistricting locked in place after voters passed the referendums).

The campaign against Bird focused on the death penalty, in part because voters were outraged and in part because that's what polls showed would work. But the original planning to oust her was organized in response to her redistricting decision in 1981.

- Doug

Douglas Johnson

Fellow

Rose Institute of State and Local Government

Claremont McKenna College

o 909-621-8159

m 310-200-2058

douglas.johnson@cmc.edu

www.RoseReport.org

From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of WewerLacy@aol.com
Sent: Tuesday, November 02, 2010 8:50 AM
To: Mark.Scarberry@pepperdine.edu; election-law@mailman.lls.edu
Subject: Re: [EL] more news II 11/1/10

Mark, you are making a mistake that academics who are not into the real world nitty gritty of election campaigns sometimes make. Your are judging an outcome of an election by substituting your academic perceptions for the voters perceptions, and therefore, your conclusion is wrong. Maybe your perception is that Rose Bird failed because she was unwilling to follow the constitution (even though Bird famously once stated that her "role is to do what's right under the Constitution. And if that's politically unpopular, so be it."). However, that was definitely not the voters principal perception in 1986. Voters are smart, but not so smart that they understand constitutional principles the way you do. The "reasoning voter" works off of campaign advertising and other clues extant during the election campaign. And what voters actually understood as the reason to reject Rose Bird was not a generalized perception that she did not follow the constitution. Instead, it was understanding obtained from the advertising and other clues they received during the retention election, and that was all about Rose Bird's poor record on the death penalty and overturning convictions of criminals.

The tenor of the campaign against her in 1986, lead by Judge Tony Raukaukas, now the DA of Orange County, was all about her position on crime, and themes about constitutionalism, if they could even be grasped by voters beyond that issue of her failure to employ the death penalty law, were very secondary. Though opposed by Governor Jerry Brown, California reinstated the death penalty in 1977, and Rose Bird (who at one time actually was Jerry Brown's campaign driver) came to the bench systematically voted to overturn 64 death penalty sentences that came before her. Bird perceived her judgments in these 64 cases as nevertheless constitutional. Those actions however were the center piece of her retention election and the reason why she lost her seat, because as translated to and by the majority of voters who rejected her, she was perceived as "soft on crime."

-Jim Lacy

Read more: Rose Elizabeth Bird - Court, California, Law, Public, Office, and Supreme http://law.jrank.org/pages/4764/Bird-Rose-Elizabeth.html#ixzz148iQBx9T

In a message dated 11/1/2010 10:25:19 P.M. Pacific Daylight Time, Mark.Scarberry@pepperdine.edu writes:

Rightly or wrongly, the perception of Chief Justice Bird was that she was unwilling to follow the clear mandates of the California Constitution. It was not primarily a matter of a perception that she was "soft on crime."