State Chief Justice Lucas to Retire : Courts: He will step down in May. He cites recent marriage as a chief reason for decision. Observers credit him with restoring order in wake of Bird court.

SAN FRANCISCO — Chief Justice Malcolm M. Lucas, who presided over the California Supreme Court as it moved in a dramatically more conservative direction, announced Saturday that he will retire in May.

Although Lucas has been stung by controversy lately, he attributed his retirement in part to his marriage two years ago to the former Fiorenza Courtright, a wealthy Beverly Hills socialite. He said he would stay on the court until May to allow for an orderly transition.

“I have not made this decision lightly,” Lucas, 68, said as he neared the end of an address to the annual California Bar Assn. convention. “But since my remarriage two years ago, I have taken a fresh look at my future.”

Lucas, who was appointed to the court by former Gov. George Deukmejian in 1984, has headed it since 1987. During his tenure, the court has become increasingly pro-business in its rulings and it has led the nation in affirming death sentences.

The chief justice is one of the court’s top producers of written opinions, and with his white locks and stern manner, appears to have been chosen by Central Casting for his role.

Analysts credit Lucas with restoring order and collegiality to the court after it was racked by controversy that culminated in voters’ 1986 ouster of liberal Chief Justice Rose Elizabeth Bird and two colleagues.

Although Bird was viewed as a remote, inaccessible administrator, Lucas appeared more open to his colleagues’ suggestions, wandering into the offices of the associate justices and even picking up their ringing telephones if he happened to pass by while they were gone.

But in recent years, Lucas became less involved in court affairs, according to court sources. He traveled abroad extensively and received wide criticism two years ago for accepting free foreign travel from groups with petitions before the court.

Since his new marriage, sources said, he has spent more time with his second wife in Los Angeles, communicating with staff at the court’s headquarters in San Francisco by fax, computer and telephone. This has required other justices to take over some of his more mundane duties and produced occasional grumbling.

“He was certainly more engaged during the early years of his tenure than recently,” said Santa Clara University law professor Gerald F. Uelmen, “and he may have felt it didn’t need as much detailed attention in recent years.”

Lucas also appeared to violate judicial ethics by recently making a political endorsement at a judges’ conference in Monterey. In introducing Atty. Gen. Dan Lungren to the conference, Lucas told the audience that he hoped and expected Lungren would be the next governor.

Legal scholars said the endorsement clearly violated a state code that prohibits judges from making political endorsements, and Lucas issued a four-paragraph statement expressing regret over his “poor turn of phrase.”

Critics of his behavior filed two complaints against him to the California Commission on Judicial Performance. Asked Saturday if he had heard from the commission, Lucas said: “I have not heard anything from them, and I don’t expect to.”

Court analysts said they doubted that the recent controversies triggered Lucas’ decision to retire. His retirement has been rumored for months, although he stunned many by announcing it at the Bar convention. His press secretary said she was not informed about his planned announcement until Friday.

Some lawyers and judges had been expecting him to step down in the near future because of his 1993 marriage. He separated from his first wife, Joan, in 1989 and they divorced in 1992.

Lucas appears to be devoted to the elegant Fiorenza, who is in her 60s. He speaks of her in public in adoring, poetic terms and of enjoying his new life with her. She gave him a Bentley last year.

He told reporters Saturday that his health was excellent, and when pressed about his reason for retiring, said: “Now that I have a different life to lead. . . .” As he talked, he put his arm around his wife.

Uelmen said he anticipated Lucas’ retirement because “I just sensed that he wanted to be able to enjoy a little retirement without everybody yapping at his heels.”

Lucas’ departure is not expected to change the ideological balance of the court, which is generally conservative. But some court analysts hope that Gov. Pete Wilson will use the opportunity to put an African American or a Latino on the court. The court now has only one minority, Justice Joyce Kennard, who is part Asian.

Analysts said they expect Wilson to fill the vacancy with someone as conservative as Lucas and elevate one of the current justices as chief. Associate Justice Ronald George, who was appointed by Wilson, has been viewed as a likely successor. A conservative on law-and-order issues, George has worked with Lucas on administrative matters and remains close to Wilson.

USC law professor Erwin Chemerinsky said a change at the head of the court could raise its profile.

“We may get a chief justice who is more involved, who uses the office much more as a platform,” Chemerinsky said. “Lucas wasn’t a terribly visible figure. My guess is most people in the state couldn’t tell you who the chief justice is.”

UC Berkeley law professor Stephen Barnett said Lucas “deserves credit for taking over a court that was traumatized by the defeat of three justices in the 1986 election and for restoring balance and public respect.”

“The Lucas court has dismantled a number of the Bird Court rulings but on the whole, apart from the death penalty area, the court has been moderate and resisted going as far to the right as the Bird Court went to the left,” said Barnett, who follows the court closely.

The court under Lucas has lost its national stature as a leader in the law, analysts said, in part because it has followed a mainly conservative path.”

“A court that makes new law is considered distinguished--it is advancing the liberal frontier,” Barnett said, “while one that pulls back looks mediocre. This court, rather than make new law, has retreated.”

Lucas’ “ethical lapses” also have stained the court and brought legislative retribution, Barnett and others noted. Barnett said Lucas’ travels prompted the Legislature to pass a law limiting the kinds of gifts and travel judges can accept, and voters overhauled the Commission on Judicial Performance after it cleared Lucas of any wrongdoing for accepting free trips.

“He did things that judges shouldn’t do,” Chemerinsky said.

The Lucas court is best known for its record on the death penalty. It affirms a higher rate of death sentences than any other state supreme court, deeming errors that occur in trials to be harmless.

In a study to be published soon, Chemerinsky found that the court supported convictions and sentences in 88 of 101 criminal cases since 1990 despite trial errors. The court decided the errors did not affect the outcome of the cases, a call that many judges say is highly subjective.

“I think Lucas did exactly what he was appointed to do: to move the court in a dramatically more conservative direction,” Chemerinsky said.

Critics fault Lucas with failing to institute reforms to reduce a backlog in the number of capital cases before the court. Many are languishing because lawyers can’t be found to take them. He is also blamed in part for a chilly relationship with the criminal defense bar.

“I have really been disturbed by the extent to which the criminal defense bar has really been treated as pariahs by the Lucas court,” said Uelmen, a member of the O.J. Simpson defense team.

Lucas began his legal career as a partner with Deukmejian in a Long Beach law firm and later served as Los Angeles Superior Court judge and a U.S. District Court judge.

He said he has no immediate plans but will not rule out teaching or becoming a private judge. Private judges are hired by litigants to resolve disputes without a public trial.

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The Chief Justice Retires

Some rulings written by Chief Justice Malcolm Lucas, who announced Saturday that he will retire May 1 from the state Supreme Court:

* An accident victim cannot seek damages for bad-faith handling of a claim by the insurer of the person who caused the accident.

* An employee who was fired in violation of the employer’s policy or promise can collect only damages for lost wages unless the firing also violated a law or public policy.

* A church cannot be sued for negligence in religious counseling that allegedly caused a parishioner’s suicide.

* A confession obtained by police without a proper waiver of the right to remain silent and have a lawyer present can be used as evidence against a defendant who testifies and denies guilt.

* An initiative that limited the terms of legislators and state officials and cut the Legislature’s budget 38% is constitutional.

* The state constitutional right to privacy applies to invasions of privacy by non-government parties, but under less rigorous court scrutiny than government intrusions; under that standard, the NCAA’s drug testing program is constitutional.

* A legislative and congressional reapportionment plan drafted by a court-appointed panel after the 1990 census is constitutional.

* An initiative that included voluntary spending limits and partial taxpayer financing of legislative campaigns cannot be enforced because part of a rival, narrower ballot measure remains in effect.

* Proposition 13’s requirement of two-thirds voter approval for local “special taxes” applies to a tax increase by any government-controlled agency that was formed to evade Proposition 13 requirements.

From Associated Press