In Memorium: Honorable ROSE ELIZABETH BIRD (1936 – 1999) Chief Justice of California (1977 – 1987)

The Supreme Court of California convened in the courtroom of the Earl Warren Building, 350 McAllister Street, Fourth Floor, San Francisco, California, on March 6, 2000, at 9:00 a.m.

Present: Chief Justice Ronald M. George, presiding, and Associate Justices Mosk, Kennard, Baxter, Werdegar, Chin, and Brown.

Officers present: Frederick K. Ohlrich, Clerk; and Harry Kinney, Supreme Court Marshal.


CHIEF JUSTICE GEORGE: Good morning. We meet today to honor Chief Justice Rose Elizabeth Bird, who led this court from March 1977 to January of 1987. I would like to begin by introducing the members of the court. Starting at my far left, Justice Brown, then Justice Werdegar and Justice Kennard. To my immediate right is Justice Mosk, and to his right is Justice Baxter and then Justice Chin. On behalf of the court, I wish to welcome Chief Justice Bird's friends and colleagues.

Although I did not serve on the court with Chief Justice Bird or have much of an opportunity to know her personally, I served on the superior court and municipal court benches in Los Angeles during her tenure as Chief Justice.

Her successor appointed me to chair the Judicial Council's committee to implement the recommendations of the Advisory Committee on Gender Bias in the Courts, a committee that she had created just before she left office, and the first such committee focusing on bias in the courts in California and probably the first anywhere in the United States.

Chief Justice Bird was the first woman appointed as a justice of the California Supreme Court and, of course, the first woman to serve as Chief Justice of California, and Chair of the Judicial Council. As you can see from the presence of the three colleagues on the bench to my left, the situation has changed a great deal since then.

Chief Justice Bird also was the first of her gender to serve as a cabinet officer for a California Governor. It is a testament to the rapid change in our society that the barriers she broke some quarter of a century ago now seem difficult to imagine.

While at the court, Chief Justice Bird also oversaw many other transitions. Many improvements in the court's operating procedures were made during her tenure, including technological innovations. The advances in court technology were reflected in several ways, culminating in the purchase of the first computers for the general use of the justices and their staffs. She also expanded the court's hiring process to reach persons who otherwise might not have been aware of employment opportunities with the court.

As a jurist, Chief Justice Bird was committed and dedicated to her role. Her opinions were articulate and expressed her view on the issues with clarity and strength. She was a prolific writer while on the court, filing not only numerous majority opinions, but many concurring and dissenting opinions as well.

She inspired great loyalty in many staff members and a variety of individuals also have spoken of her personal kindness to them, both while she was on the court and after her departure. In addition, she demonstrated tremendous courage in carrying on with her responsibilities and the burdens of her office despite the extraordinary challenges she faced relating to her own health.

Chief Justice Bird served for almost ten years and left a wide-ranging legacy: Her role as the first woman on the court, her unwavering commitment to do what she believed to be right, and her efforts to improve the administration of justice all represent important landmarks in the history of our court.

I now would like to introduce my colleague, Justice Joyce Kennard, who came to know Chief Justice Bird after her own appointment to the court and who will speak on behalf of our court.


JUSTICE KENNARD: Thank you very much, Chief Justice George.

Last December, at the age of 63, when she had barely begun the evening of her life, former Chief Justice Rose Elizabeth Bird lost her long and heroic battle against cancer. Although she has passed to eternal silence, she will never be forgotten. This woman of intellectual brilliance, extraordinary courage, compassion and grace has forever left her imprint on California's history.

Her entire career was devoted to public service; she embarked on paths where no woman had gone before.

In 1965, she became the first woman law clerk on the Nevada Supreme Court; in 1966, she was the first female deputy public defender hired in Santa Clara County; in 1975, Governor Jerry Brown selected her as his Secretary of Agriculture, the first woman in the state to hold cabinet rank; and, in 1977, she became the first woman Chief Justice of California, and the first woman to ever serve as a justice on the court.

She did indeed reach dizzying heights of success. But then in 1986, she experienced the pain and sorrow of defeat when the electorate voted her out of judicial office.

The years to come were often difficult. She had a meager income and she was battling cancer. But she faced life's storms with her customary courage and, through her many travails, she never ceased thinking of the welfare of others.

For instance, just one day after undergoing a mastectomy in the fall of 1996, she made the long drive from her home in Palo Alto to Oakland, to attend the memorial service for her friend and former colleague, Justice Allen Broussard. And later, during the winter, Rose gave her good winter coat to a homeless woman who she said needed it much more than she did.

That was the kind of person she was. Invariably, people ask me how Rose and I became friends. Shortly after my appointment to the court in April of 1989, Rose sent me a note welcoming me to the court and wishing me well.

At that time, I didn't know Rose personally, and her thoughtfulness touched me deeply. I wrote back, thanking her. Eventually, we met and became good friends. It was a friendship filled with warmth and laughter. I will always remember Rose as a kind, generous and gracious friend.

Rose championed the interests of the downtrodden. She was fearlessly committed to her ideals of liberty and justice for all. In the words of a mutual friend, Attorney Dale Minami, "She should be remembered as a strong, brilliant, yet caring human being who gave heart to the law and hope to the disadvantaged that justice was available from the Supreme Court."

In summary, borrowing a phrase from President John F. Kennedy, "Rose knew the midnight, as well as the high noon." She understood the ordeal, as well as the triumph, of the human heart. She showed that through strength one can overcome despair. She was a woman of substance, a woman of character. Her friendship enriched my life.


CHIEF JUSTICE GEORGE: Thank you very much, Justice Kennard. I now would like to introduce former Justice Cruz Reynoso, who was a colleague of Chief Justice Bird when they both served on the Supreme Court.


JUSTICE REYNOSO: May it please the court, Mr. Chief Justice and Associate Justices. Thank you for the opportunity to share with you remembrances of an extraordinary woman and Chief Justice of California, Rose Elizabeth Bird.

Her sojourn on this planet was not a long one. Her accomplishments in the service of her fellow Californians were many and lasting. Foremost, it seems to me, was her example to us all that one could implement one's most noble ideals and live a satisfying and fulfilling life.

I met Chief Justice Bird after she was named to the bench. I was then serving as an associate justice of the Court of Appeal in Sacramento. Aside from meeting her informally, I was soon asked to join the Supreme Court on assignment. I was the beneficiary of a new policy implemented by her whereby trial judges and justices of all courts could be assigned to sit with this court in the absence of a Supreme Court justice.

To join her and to join Justice Mosk, whom I have known since his service as Attorney General, and the other justices was, for me, a fulfilling and challenging professional task.

She personally took time to extend the invitation, to explain the Supreme Court internal practices, to make me feel welcome, and to later thank me for service to this court. A few years thereafter, I joined the court. I was honored that Chief Justice Rose Bird administered my oath of office.

The press reported, at that time, that there were tensions among the justices. So, since I knew and respected each justice I was determined, I told myself, to bring peace to the court. However, when I arrived, I looked in vain for the reported friction. Rather, I found vigorous but respectful agreement and disagreement among the justices.

Justice Frank Newman, my former professor at Boalt Hall and my court colleague, referred to our Wednesday conferences as the best seminars in which he had ever participated. That atmosphere of vigor and humanity was nurtured by the Chief Justice.

She had come to her position as Chief Justice at an age young of years, but full of accomplishments. She graduated from Boalt Hall in 1965, at a time when women represented no more than three percent of the bar, and whose presence on the bench was rare. She was 41 years of age when she was named Chief Justice by Governor Edmund G. (Jerry) Brown, Jr.

He tells of meeting her at Berkeley's International House shortly after he left the seminary. She immediately impressed him, he recalls, as a person who was highly intelligent, highly competent and highly direct.

The Chief Justice had been raised poor, first in Arizona and later in New York, where her mother supported her and her two brothers by working at a factory job. Before attending law school, she worked as a legal secretary. She knew life as those without power live it. The perspective of those who do not have power guided her sense of justice.

When she graduated from Boalt Hall, after clerking for the Nevada Supreme Court, her first attorney position was that of a public defender of Santa Clara County. She had already begun her role as a trailblazer. She had been “ascendicated” to this court, the first woman law clerk at the Nevada Supreme Court, and she was the first woman to work as a public defender in San Jose.

She, like the other seven or eight attorneys, worked long hours. The inside joke, according to Judge Takei, who then worked with the Chief Justice, was that the defense attorneys spent more time in jail than their clients. The Chief Justice quickly advanced from trial attorney to senior trial deputy, to chief of the unit working on appeals and writs.

Judge Takei remembers an incident which typified the dedication that the Chief Justice had to her clients. She had defended a woman charged with prostitution. The woman was poor and had recently arrived in the city from a rural Indian reservation. The accused was acquitted, but she had no place to go. The Chief took her to her home and subsequently paid for her return trip to her native reservation.

By the early- and mid-1970's, the Chief Justice was teaching at Stanford as a clinical professor. She and Anthony Amsterdam taught a course in criminal defense. My UCLA colleague, William Warren, was then teaching at Stanford, and taught a course on consumer protection with the Chief Justice. Professor Warren described her as a totally dedicated, inspiring and talented teacher.

Her students voted her the most popular professor. As a clinical professor, she had what one former student called "the miraculous power to give strength." She was close to her students; many later worked with her in her executive and judicial roles.

Governor Jerry Brown, then newly elected, named Chief Justice Bird as Secretary of Agricultural Services, the first woman again “ascendicated” ever to hold a cabinet position in the state government. In that position, she stretched her energies even more. In short order, she incorporated lay persons into professional commissions, banned the short-handled hoe, and regulated toxic waste.

I learned only recently that her cancer which eventually took her life appeared while she was in state service. Her time, she may have felt, was limited and there was much she wanted to accomplish.

Democracy, we all know, is a most difficult form of government. I serve as vice-chair of the United States Commission on Civil Rights. Too often when we have hearings on police-community tensions, the public officials, mayors, district attorneys, police chiefs and sheriffs testify that all is well in the community. Citizen surveys confirm strong support for the police, yet dozens of church and community leaders, as well as countless individuals, will follow with their own testimony questioning actions they consider seriously hurtful to the citizenry. It is hard to give voice to a political minority when officials are beholden to an electoral majority. At the same time, the people may speak, but political realities impede implementing that public will. Thus, poll after poll indicate that Californians are willing to pay more for a head of lettuce or a pound of carrots to enhance the lives of farmworkers. Yet that public opinion, supportive of farmworkers, had not realized its potential until then Secretary Rose Bird structured the Agricultural Labor Relations Act. She understood democracy, it seems to me, and made it work.

My own observation is that as Chief Justice, she had three passions. Her first passion was the law. She would agree with Daniel Webster that “The law, it has honored us, may we honor it.” Chief Justice Rose Bird honored the law, even when she disagreed with it.

Her second passion related to the first, an abiding faith that the law should protect all, the weak and the strong. Those who were weak in political or economic power could look to the black robes for protection, be they consumers, renters, farmworkers or those politically unloved.

The third passion was her conviction that justice would be best served if those black robes were on the shoulders of judges representing both genders and all ethnic and racial groups who make California home.

Those who worked most closely with the Chief speak of her as headstrong and stubborn, yet gentle in compassion. They agree that she was an inspiring judge.

During her tenure, the body politic of California changed. For decades, there had been an unstated agreement among the political parties that the judiciary would not be the subject of partisan political attack.

I recall my own 1976 appointment to the Court of Appeal. Chief Justice Donald Wright called to congratulate me. He advised me that I need not appear at the constitutionally required hearing and assured me that I would be confirmed in light of my background. A few weeks thereafter he called with the expected good news, that I had been confirmed. That was it.

Just over five years thereafter when I was named to this court, the change was dramatic, the hearing was contentious, many witnesses appeared and the vote was divided. Partisan politics were in full bloom.

During Chief Justice Rose Bird's tenure, she was subjected to several recall petition campaigns and to two confirmation votes. She understood that court decisions which angered powerful groups or protected nonmajoritarian rights would jeopardize her position. She remained true to her oath of office, she enforced the Constitution and applied it equally to all.

As a member of the American Bar Association's committee to select recipients of the annual Thurgood Marshall Award, I have reviewed hundreds of attorney and judicial profiles. Many judges, federal and state, have shown great courage; but no judge, in my view, has been more courageous than Chief Justice Rose Bird, who performed her judicial tasks in the face of physical and political threats. She suffered a vote of nonconfirmation and retired from the bench in 1987.

There is life after the bench. Perhaps out of the public's glare the true character of Chief Justice Rose Bird can be better understood. She lived a private life. She volunteered in a food kitchen which served those in need. She assisted the East Palo Alto Law Clinic which represents the poor. She cared for her elderly mother and loved her dog, Nellie.

It was in 1986 that she met Willene Gunn. Ms. Gunn tells of seeing the Chief Justice, whom she did not know at that time, during mass each Sunday. She and the Chief would slowly walk their elderly mothers to the pews. The Chief and her mother would sit behind Ms. Gunn and her mother.

Ms. Gunn's mother suffered from a condition that caused her to sneeze. Each Sunday, as the priest began to preach, her mother would sneeze perhaps 20 times in a row, long and loud. Eventually, a time came when the priest began to preach and miraculously no sneeze occurred. The Chief, described by Ms. Gunn as that “tall, elegant woman” tapped Ms. Gunn on the shoulder and mused, "She missed her cue." That, Ms. Gunn tells us, was the beginning of a fast and enduring friendship.

The year they met was 1986, precisely the time that the Chief was under vigorous political attack. Yet she took time to care for her mother and make new friends. Father Eugene Boyle, who served Palo Alto's St. Anne's Chapel, refers to Chief Justice Bird as a person of deeply religious principles, those of truth, justice and compassion. The description, it seems to me, is apt.

A month ago, Boalt Hall celebrated the unveiling of photographs and one painting of Boalt graduates who have served on the California Supreme Court. Justice Mosk happened to be there. There were historic giants like Chief Justice Traynor. There, too, were my own colleagues, Justices Allen Broussard and Frank Newman, and, of course, Justice Kathryn Werdegar, who graces this court, was also present. Prominent among the photographs was that of an extraordinary woman and Chief Justice, Rose Bird.

I entertain a deep sense of pride and satisfaction in sharing that space. I am proud to have been a friend and colleague of Chief Justice Rose Elizabeth Bird. History will note her trailblazing career and the good she did for us all.

Thank you very much.


CHIEF JUSTICE GEORGE: Thank you very much, Justice Reynoso. I now would like to introduce Mr. Scott Sugarman, a former research attorney for and friend of Chief Justice Bird, and now a well-respected criminal defense attorney in the Bay Area.


MR. SCOTT SUGARMAN: May it please the court.

I am honored to have been invited by Chief Justice George and the associate justices of the Supreme Court to speak at this tribute for Chief Justice Rose Elizabeth Bird. I knew Chief Justice Bird for nearly 30 years.

We met in the early 1970's, when I was her student at Stanford Law School. She taught an advanced course in criminal procedure, a very demanding clinical seminar. She was widely regarded as one of the best teachers on the faculty because of her remarkable devotion to her students, her insight and intelligence, and her commitment to teaching law students to be real lawyers.

After she was confirmed as Chief Justice of California in 1977, she asked me to work as her law clerk. I did so for nearly three years. There, she continued to be my teacher and mentor, as she was a mentor to all the law clerks who worked with her. And, for the years that followed my clerkship, until the day she died, she was my friend.

I want to share with you what it was like to work for her, about some of the qualities of character she demonstrated every day.

She was extraordinarily hardworking. She worked days, nights, weekends, holidays; it did not matter. There was work to be done and she was going to do it all. And she demanded no less of her staff. Let me tell you about my first day.

I drove from the East Coast to San Francisco, to begin my clerkship with the Chief Justice. I reached my destination on a Thursday evening. On Friday morning, I called her to tell her that I had arrived and she told me to meet her later that day.

We spoke in her chambers about the vacation which I had just concluded, which, I must note, turned out to be the last vacation I would have for some time. At the end of our talk she told me that three days later, on Monday, the Supreme Court would commence its fall calendar. The court would hear oral arguments in 25 or so cases during that week. She then pointed to a three-foot-high stack of documents sitting on the corner of her desk—the court memoranda and briefs for that week's calendar. Could I, she asked softly, review all of those cases and discuss them with her on Sunday afternoon, two days later? I blanched. The task seemed impossible. I meekly suggested an alternative, that I meet with her before oral argument each morning during the week to discuss the cases to be argued that day. She agreed. And each and every morning, bright and early, we discussed the cases to be heard that day.

In 1978, when she had been Chief Justice only a year, the biggest political issue of the day came to the Supreme Court—the constitutionality of Proposition 13. Proposition 13 radically altered the payment of property taxes in California, and thus changed the way California was governed then, and to this day. The initiative had passed with the support of a substantial majority of the voters.

Predictably, within days of its passage, challenges to Prop. 13 from cities, counties and others throughout the state poured into the court. The way in which Chief Justice Bird dealt with that case illustrates much about her character.

Once the briefs were in, the Chief's instructions to her law clerks were simple: Read all the petitions and evaluate the best arguments that could be made about the constitutionality of Proposition 13. No prejudgment, no stacking the deck.

Once the Supreme Court voted to hear those petitions, the case was on the fast track. The Chief's clerks soon met with her to discuss the issues raised in that case, and how relevant prior judicial opinions related to the issues presented. She did not want law clerks who were compliant, who would only mirror what she wanted to hear. She asked for, and got, our independent views.

After she personally reviewed the briefs and applicable precedents, she told us that, on reflection, she was deeply troubled by the fact that homeowners sitting side by side, with homes of the same value, would be required to pay very different amounts in taxes to the state for the same public services. Chief Justice Bird concluded that making those homeowners pay different taxes violated the equal protection clause of the United States Constitution. She held strong views about the importance of equal treatment in our society and, in her view, Proposition 13 treated identically situated individuals differently.

Her opinion in Amador Valley v. State Board of Equalization (1978) 22 Cal.3d 208 was an open book of her thoughts and expressed her views on what a judge must do. She believed in the people and their right to govern their own lives. In the very first sentence of her opinion, she wrote that judges must accord great deference to the expressed will of the people. A judge must construe an initiative "so that the will of the people is given full weight and authority." However, she explained that if this or any initiative or legislative act was in conflict with the United States Constitution, judges were duty bound to uphold the mandate of the Constitution. As she wrote, "judges . . . must be devoted to the preservation of the great constitutional principles which history has bequeathed to us."

In her opinion, she was quick to admit that her conclusion that Proposition 13 was unconstitutional had not come easily. She acknowledged that the issue was close and that the emotions on the question ran high. However, particularly in such an environment, she wrote, "a judge must follow the law and do what it requires."

Each of the six other judges on the Supreme Court—including a man she admired and respected greatly, Justice Matthew Tobriner—concluded that the initiative was constitutional. It is little short of astounding that she was willing to stand alone in opposition to Proposition 13 just two months before her first confirmation election in 1978. It would have been easy to join the court’s six-member majority and stay silent. Her vote could not alter the court's decision to uphold the constitutionality of Proposition 13. However, she believed that to abandon her true understanding of the mandate of the Constitution would betray her core responsibility as a judge. While she understood that her expressed opinion might cost her the election and her office as Chief Justice of California, she would not bend to adopt a course she believed was contrary to her duty.

She knew that powerful political forces would be arrayed against her. She knew she could not defend herself other than in her written opinion. Yet she truly had the courage of her convictions, and a fundamental belief in the independence of the judiciary. It is her courage and her integrity that shine through.

Just a few weeks ago, Justice Kathryn Werdegar of this court delivered an address at Boalt Hall on women on the bench. At the end of her thoughtful remarks, she observed that women on the bench served as a role model.

Chief Justice Bird was not just a role model to women, and especially young women lawyers, who knew her or knew of her. Gender was not a dividing line here. She was the role model for all young attorneys.

She was, and is, an unequaled model of integrity and fidelity to the mandates of the Constitution and the Bill of Rights. As her decision in Amador Valley illustrates, she was a judicial example of character, strength and courage.

Predictably, Chief Justice Bird's opinion in the Proposition 13 case garnered much attention in the press. I think it is fair to say that no judge in California has ever endured as much day-to-day critical commentary, speculation and coverage as Chief Justice Bird. Yet, for all of that commentary, it is little short of shocking that so little has been said about the scholarship of the body of her opinions.

Whether she was writing about a poor woman's access to government funding for an abortion as in Committee to Defend Reproductive Rights v. Meyers (1982) 29 Cal.3d 252, or the right of the family of a rich and famous man to control the commercial exploitation of his likeness and life's work as in Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, or the ban on the admission of statements taken from suspects in violation of their right to remain silent as in People v. Rucker (1980) 26 Cal.3d 368, her opinions reflect exhaustive research, principled decisionmaking and compelling analytical thought.

While I and some of my colleagues concluded our clerkships with the Chief Justice some 20 years ago, the clarity of her opinions and her commitment to individual rights and judicial independence remain powerful guides to our understanding of new cases and new controversies.

Maybe because she was the first woman to serve as a law clerk in the Nevada Supreme Court, or because she was the first woman to serve as a deputy public defender in Santa Clara County, or because she was the first woman to serve as a cabinet officer in the State of California, or because she was the first woman to serve on the California Supreme Court, Chief Justice Bird was keenly sensitive to the struggles of the outsider and the dispossessed, of the power exercised by the "haves" on the "have nots," of the power used by government agents and officers on those who are powerless.

She was a passionate advocate for justice and fair and equal treatment. While she was well aware of the role of the Supreme Court as a court which set precedent, she firmly believed that the court must hear cases to do justice, especially for those whose access to the legislative or executive branches was limited or denied. While she believed every person was entitled to justice and equal treatment under the law, she spoke with a rare passion for those who were powerless or penniless, neglected or notorious.

Chief Justice Bird expressed her vision more eloquently than I can recreate, in the last speech she gave as Chief Justice in January of 1987, at the Annual Law School Deans' Luncheon. There, she said:

"Our humanity informs us and instructs us in what it is to live lives of decency and dignity. As lawyers and judges, we bring unique perspective to our humanity that, if used wisely and well, can enhance the quality of justice in our society.

“That is not a task for tomorrow. It is something we must live every day. And if we live it fully — with all of our intelligence, compassion and courage — then we will have truly fulfilled the promise of justice our titles imply.

“If we judges and lawyers are not to be popular, let it be because we are standing on the forefront of protecting people's rights during a time of transition. Let it be because we have the courage to represent unsympathetic individuals and make difficult rulings in order to give life and breath to our constitutional guarantees.

“Let it be because we have the integrity to do justice, even though such actions may be met with criticism and disapproval. Let it be because we see our role from the perspective of its noble traditions, not from the pressured viewpoint of the moment.

“Let it be because we stand up for a just society and stand firm for the rule of law.”

At a similar tribute in this court in 1984 to the late Chief Justice Phil Gibson, Justice Mosk told the assembled jurists and guests that "[t]here were no sacred cows to Phil Gibson. Wrong was wrong, no matter how influential the perpetrator." That observation is equally applicable to Chief Justice Rose Elizabeth Bird.

From the same place inside her from which came her passionate commitment to justice came her enormous caring and compassion for the men and women around her. Not a birthday, anniversary, or holiday came which she did not remember with a personal card or gift. During the winter holidays, her chambers would be filled with laughter and good food, much of which the Chief Justice personally prepared. For each staff member, she obtained an individual memento or gift, tailored to his or her traits. She never bought 20 identical pens or pet rocks, but spent the time and effort to find some gift that would fit the recipient. And, at Thanksgiving or the New Year, she would send flowers to our homes.

We, who were fortunate enough to serve as her law clerks, and to work with her, thus learned lessons not just by her instruction, but by the life she lived and the decisions she made each day.

Her beacon is now gone. However, her spirit, her integrity, her brilliance, her vision is preserved in our hearts and minds, and is evident in the hundreds of judicial opinions which she authored and in which she participated during her nearly ten years as Chief Justice of the Supreme Court. Her legacy continues to inspire those who knew and worked with her and will enlighten and invigorate any who take the time to learn from her.

Thank you.


CHIEF JUSTICE GEORGE: Thank you very much, Mr. Sugarman. I again want to express the court's appreciation to those who have contributed their special and memorable remarks to this morning's memorial session. In accordance with our custom, it is ordered that the proceedings of this memorial session be spread in full upon the minutes of the Supreme Court and published in the Official Reports of the opinions of this court, and that a copy of these proceedings be sent to Chief Justice Bird's family.

(Derived from Supreme Court minutes and 22 Cal.4th.)