Tobriner, Matthew O.

English

Loyola Marymount University

Loyola Marymount University and Loyola Law SchoolDigital Commons at Loyola MarymountUniversity and Loyola Law SchoolLoyola of Los Angeles Law Review Law Reviews12-1-1975Justice Louis H. Burke—A TributeMatthew O. TobrinerThis Introduction is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and LoyolaLaw School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@LoyolaMarymount University and Loyola Law School. For more information, please contact digitalcommons@lmu.edu.Recommended CitationMatthew O. Tobriner, Justice Louis H. Burke—A Tribute, 9 Loy. L.A. L. Rev. 3 (1975).Available at: https://digitalcommons.lmu.edu/llr/vol9/iss1/2JUSTICE LOUIS H. BURKE-A TRIBUTEby Justice Matthew 0. Tobriner*Justice Louis Burke is a judge who fits into no pre-ordained category.A handsome six-foot-three man whose open features suggest an almostboyish quality, Justice Burke may conjure up visions of an approach tothe law that is simple and easily defined, but the record does not confirmany such assumption. Justice Burke's background may give a clue. Iam told his mother was a charming, tiny, courageous French woman ofhigh'native intelligence; his father, a somewhat gregarious person ofIrish background, a practical, conservative man, who rose to someprominence in local Canadian politics. It is not surprising that JusticeBurke does not easily fit into the "liberal" or "conservative' stereotypeor the Republican or Democratic model.The record of his ten year span on the Supreme Court (1964-1974)consists of the remarkable productivity of 237 majority opinions, 105dissents, 37 concurring and dissents, 7 concurring, and 5 by the court,totalling 391. When it is remembered that at least one-half of JusticeBurke's time must have been occupied in preparing for weekly confer-ences for the disposition of an approximate average of 80 petitions forhearings, writs and State Bar matters, as well as passing upon theopinions of his colleagues, the record is even more impressive. Nor doesthis evaluation take into account the tremendous effort and time JusticeBurke devoted to the American Bar Association, the National Center forState Courts and the American Judicature Society. I have written else-where' of Justice Burke as an administrator of such programs, as a non-judicial man, as the devoted husband of his remarkable wife, Ruth, andas the father of five successful children. Let us look briefly at hisillustrious record as a writer of Supreme Court opinions.Justice Burke's record in the field of criminal law illustrates hisindependence of a categorical or rigid approach to problems in thatarea, as well as his open-mindedness and willingness to reexaminepreviously held positions. The death penalty cases furnish telling exam-ples. His positions in People v. Goedecke z and People v. Nicolaus3* Associate Justice, California Supreme Court.1. Tobriner, A Salute to Justices Burke and Mosk, 50 CAL. ST. B.J. 14 (1975).2. 65 Cal. 2d 850, 423 P.2d 777, 56 Cal. Rptr. 625 (1967).3. 65 Cal. 2d 866, 423 P.2d 787, 56 Cal. Rptr. 635 (1967).LOYOLA OF LOS ANGELES LAW REVIEWperhaps foreshadowed his ultimate rejection of the harsh sanction of thedeath penalty. In each of these cases, Justice Burke wrote opinionsreducing a first degree murder conviction carrying the death penalty tosecond degree murder.The facts of each case, tragically revolting as they were, demonstratedthe utter inappropriateness of the death penalty. In Goedecke, the courtwas confronted with a first degree murder conviction of an 18-year oldboy who had killed his father, mother, brother and sister after attendinga religious meeting. He could not state what was in his mind during theepisode except, after its commission, the thought that he should get outof his parents' house. Justice Burke's opinion points out that there wasno psychiatric testimony as to the extent to which the defendant couldmaturely and meaningfully reflect upon the gravity of his contemplatedact and therefore Justice Schauer's test in People v. Wolf4 had not beenmet.Similarly, in Nicolaus, a father who had been hospitalized in a psychi-atric unit and who had considered himself a follower of Hitler andpossessed of god-like qualities, killed his three children. Justice Burkewrote the opinion for the court, holding that such a defendant lacked thecapacity to understand the enormity of his conduct and could not beheld guilty of first degree murder. Thus, Justice Burke courageouslyfollowed the doctrine of diminished capacity to avoid inflicting the deathpenalty on defendants unable to comprehend the quantum of the enor-mity of their conduct.The death penalty cases offer another instance of Justice Burke'shumanity and insistence that, in the criminal field, the court look to thesubstance of the cases rather than to inapposite and outmoded rules. Inthe first instance of our court's in-depth adjudication of the constitution-ality of the death penalty, In re Anderson," Justice Burke upheld thepenalty against the charge that it was a denial of equal protection anddue process because the issue of life or death was determined without4. 61 Cal. 2d 795, 394 P.2d 959, 40 Cal. Rptr. 271 (1964).[T]he true test must include consideration of the somewhat limited extent to whichthis defendant could maturely and meaningfully reflect upon the gravity of his con-templated act.[Tihe use by the Legislature of "wilful, deliberate, and premeditated" in conjunc-tion indicates its intent to require as an essential element of first degree murder(of that category) substantially more reflection; i.e., more understanding and com-prehension of the character of the act than the mere amount of thought necessaryto form the intention to kill.Id. at 821-22, 394 P.2d at 975-76, 40 Cal. Rptr. at 287-88.5. 69 Cal. 2d 613, 447 P.2d 117, 73 Cal. Rptr. 152 (1968).[Vol. 9JUSTICE LOUIS H. BURKEany test, standard or guide-post and hence at the purely subjective andarbitrary choice of the fact-finder. I wrote the dissent in that case, andalthough I was joined by Justices Traynor and Peters, Justice Burkespoke for the majority.Justice Burke, however, continued to give the matter grave andserious thought; he often discussed the issue with me, explaining that hebelieved the death penalty might serve a function as a deterrent to thewould-be murderer. The issue became a matter of friendly but sinceredebate in which Justice Burke and I engaged over the years. Yet I shallnever forget the day when at lunch he told me that I should be happyindeed because he had finally reached the conclusion that the deathpenalty could probably not be constitutionally sustained. And thus inPeople v. Anderson,' Justice Burke joined the majority in holding thatthe death penalty violated the California Constitution as an infliction ofcruel or unusual punishment. His vote marked him as an open-minded,sensitive jurist, and as an independent thinker willing to re-evaluate along-accepted rule in light of changing times.But Justice Burke also held a strong belief that sometimes our courterred on the side of the criminal defendant in over-emphasizing an errorthat might have occurred in the course of a trial and overlooking themandate of Article VI, section 13 of the California Constitution, whichprovides that the error does not require reversal unless it is prejudicial.He particularly believed that the failure to inform a defendant of hisright to counsel under the doctrine of People v. Dorado7 and Miranda v.Arizona8 should be tested in the crucible of the prejudicial error rulerather than compel automatic reversal, as our court has, indeed, held.9In this respect Justice Burke finds present support in the thoughtful anderudite book of Justice Flemming, The Price of Perfect Justice. ° Ipresume that this issue will continue to intrigue judges and to evokeconflicting responses for many years to come.In the field of constitutional law Justice Burke contributed manydecisions of outstanding significance. There are too many to analyze indetail but I shall emphasize some that unquestionably influenced theprogression of the law in this vital area.When Justice Burke served as the presiding justice for the Court of6. 6 Cal. 3d 628, 493 P.2d 880, 100 Cal. Rptr. 152 (1972).7. 62 Cal. 2d 338, 398 P.2d 361, 42 Cal. Rptr. 169 (1965).8. 384 U.S. 436 (1966).9. People v. Doherty, 67 Cal. 2d 9, 429 P.2d 177, 59 Cal. Rptr. 857 (1967).10. M. FLEMMiNG, THE PRIcE OF PERFECr JUSTICE (1974).1975]LOYOLA OF LOS ANGELES LAW REVIEWAppeal, Second Appellate District, Division Three, he recorded his deepaversion to racial discrimination in the important case of AbstractInvestment Co. v. Hutchinson." There he held that in an unlawfuldetainer action a defendant tenant must be permitted to show, as aspecial defense, that his eviction had been sought wholly on the groundthat he was a Black. Such discrimination, wrote Justice Burke, wouldbar court-ordered eviction since the resulting state action would violatethe California and Federal constitutions. This holding was one of thefirst expressions against racial discrimination that one can find in theCalifornia law books; it anticipated, and to some extent, inspired our1966 ruling in Mulkey v. Reitman,12 which, in invalidating Proposition14, relied in part on the Abstract case. 3 Justice Burke had the satisfac-tion of joining with the majority in Mulkey.Justice Burke's decisions have recognized that the criminal defendantshould not be treated as a penal statistic but as a human being entitled tothe possibility of rehabilitation and the protection of the Constitution. InIn re Foss,4 he struck down as cruel and unusual punishment forrepeated offenders a provision of the California drug laws which man-dated a minimum 10-year sentence without possibility of parole. JusticeBurke pointed out that "even though the offender may have suffered asecond conviction because of his addiction, once he has been able toovercome that addiction or show a real promise of rehabilitation and ofbeing able to remain free of further narcotic usage he may not be triedunder parole supervision but must still remain in prison until the expira-tion of the mandatory 10-year period." He concluded that "by hinderingthe Adult Authority's ability to tailor the punishment to fit the rehabili-tative progress of the particular offender, the provision precluding pa-role consideration increases the cost to the society of the offender'sincarceration both in terms of the dollar cost of a longer imprisonmentand in terms of the ill effects suffered by offenders from unduly longperiods of imprisonment."' 5In similar recognition that the defendant as a human being should notbe shunted off to a state hospital without the opportunity to stand trialwithin a reasonable time to show recovery from illness, Justice Burke11. 204 Cal. App. 2d 242, 22 Cal. Rptr. 309 (1962).12. 64 Cal. 2d 529, 413 P.2d 825, 50 Cal. Rptr. 881 (1966), aff'd 387 U.S. 369(1967).13. Id. at 538, 413 P.2d at 831, 50 Cal. Rptr. at 887.14. 10 Cal. 3d 910, 519 P.2d 1093, 112 Cal. Rptr. 649 (1974).15. Id. at 924, 925, 519 P.2d at 1081, 1082, 112 Cal. Rptr. at 658, 659.[Vol. 9'1975] - JUSTICE LOUIS I. BU&RKE 7wrote the opinion in In re Davis.'6 There he held that a person chargedwith criminal offenses and committed to a state hospital solely becauseof his incapacity to stand trial may not be confined more than thereasonable time necessary to determine whether there is a substantiallikelihood of his recovery in the foreseeable future.Justice Burke, indeed, recorded his sensitivity to the rights of theindividual as against the powerful institution of government, whetherthe individual was the subject of government snooping, or an individualindigent, or an individual prosecuted in the justice court. Thus, inPeople v. Edwards,17 he upheld, as an alternative to the rigid "openfields" test in search and seizure cases, the "reasonable expectation ofprivacy" standard, in order to prevent unreasonable governmental in-trusions into one's personal privacy. In Ferguson v. Keays,'8 he heldthat an indigent civil litigant should have the right to be relieved ofstatutory filing fees in the event that he could not afford to pay them.Moreover, in Gordon v. Justice Court,'0 he held that criminal trialswhich could result in the defendant's imprisonment, conducted by non-lawyer judges, did not meet the standards of due process of law. Heheld that so-called "police judges" must at leastbe qualified lawyers.Justice Burke has given us outstanding decisions in the field of work-ers' compensation cases. They are characterized by his adherence to thestatutory mandate of liberal construction and resolution of all doubts infavor of compensability.Thus, probing into the "going and coming" rule which has alreadyundergone considerable erosion, Justice Burke carved out further limita-tions. In Le Febvre v. WCAB, 29 the record showed that the employerrequired a volunteer fireman to travel to evening fire drills. JusticeBurke held that workers' compensation to the wife of the fireman whodied in a car accident while en route to the drill was not barred by the"going and coming" rule; the fireman was compelled to undertake thisadditional risk and exposure to accident as an incident to employment.Likewise, in Dimmig v. WCAB, 2' an employer encouraged an employeeto attend night college classes; the employer paid part of the tuitionbecause the instruction afforded to the- worker benefitted the employer.16. 8 Cal. 3d 798, 505 P.2d 1018, 106 Cal. Rptr. 178, cert. denied, 414 U.S. 870(1973).17. 71 Cal. 2d 1096, 458 P.2d 713, 80 Cal. Rptr. 633 (1969).18. 4 Cal. 3d 649, 484 P.2d 70, 94 Cal. Rptr. 398 (1971).19. 12 Cal. 3d 323, 525 P.2d 72,,115 Cal. Rptr. 632 (1974).20. 69 Cal. 2d 386, 445 P.2d 319, 71 Cal. Rptr. 703 (1968).21. 6 Cal. 3d 860, 495 P.2d 433, 101 Cal. Rptr. 105 (1972). -LOYOLA OF LOS ANGELES LAW REVIEWJustice Burke held that the employee, who was injured while returninghome from such a night college class, could not be barred from recoveryby the "going and coming" rule.Justice Burke's recognition of the statutory mandate of liberal con-struction and the importance of the referee's role in determining credi-bility of witnesses finds illustration in a number of cases. Evans v.WCAB 2 and Kerley v. WCAB28 attest his enforcement of the liberalconstruction rule; Garza v. WCAB2 4 shows his implementation of thereferee's function. The latter is a most important case, for there JusticeBurke held that in view of the referee's competence to decide matters ofcredibility and other questions of fact, his findings are entitled to greatweight. The findings are not subject to rejection by the board in theabsence of contrary findings strongly supported by substantial evidence.Nor should the findings be upset by mere speculation and surmise.Justice Burke concluded: "[lihe denial of compensation benefits can-not rest upon the board's mere suspicion or surmise, in view of thepolicy of the law to resolve all reasonable doubts in the employee'sfavor.2 5The list of Justice Burke's contributions could go on endlessly; I haveomitted whole subject matters of the law in which he has writtenimportant decisions. I cannot, of course, discuss some 391 opinions.Suffice it to say, the ones that I have noted show that, despite theoccasional assertion that Justice Burke is a "conservative," the designa-tion simply does not fit. In any event, classifications of that nature donot accurately describe appellate judges; I would submit, for whatever itis worth, that Justice Burke could as appropriately wear the mantle of"liberal." I cite to you the comment of the writers in the March, 1974issue of the California Law Review, analyzing the work of our court,who conclude that Justice Burke's "so-called conservative outlook in-cludes a passion for fairness and due process."2 6 The record at the leastbears out this appraisal, and, indeed, establishes more.When we regard Justice Burke as a man, we see a rugged simplicitythat marks him as one who works beautifully in wood, paints sensitivepictures, builds fences at his farmlike home, and wields an experthammer as a carpenter. When we look at him as a judge we find a22. 68 Cal. 2d 753, 441 P.2d 633, 68 Cal. Rptr. 825 (1968).23. 4 Cal. 3d 223, 481 P.2d 200, 93 Cal. Rptr. 192 (1971).24. 3 Cal. 3d 312, 475 P.2d 451, 90 Cal. Rptr. 355 (1970).25. Id. at 319, 475 P.2d at 456, 90 Cal. Rptr. at 360.26. Forward: Ripe for Decision, Internal Workings and Current Concerns of the Cali-fornia Supreme Court, 62 CALiU. L. REV. 303, 363 (1974).[Vol. 91975] JUSTICE LOUIS H.- BURKE 9record that is by no means simple. There are interesting angles, intellec-tual nuances, unexpected originality and warm acceptance of humanneed.And so when Lou Burke announced that he would retire from theSupreme Court, I suspected that I would miss him-miss his warmth,his stories of the building of his home at Necassio, Matin County; and ofthe vicissitudes of tending ducks, geese, cats and a dog, fending offracoons, and similarly marvelous tales on a myriad of other subjects.(He is a superb raconteur.) I would miss his counsel, his appraisal ofthe cases, his contributions to our court. I must say in all honesty thatthose fears of loss have borne out; I miss him deeply.

Justice Louis H. Burke—A Tribute

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Justice Louis H. Burke—A Tribute

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