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Subject: Marcus M. Kaufman, 73; State Supreme Court Justice

Newport Beach
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Date Posted: March 28, 2003 11:56:42 EDT

Marcus M. Kaufman, a former associate justice of the California Supreme Court known for his independent and sometimes outspoken views, died Wednesday at his home in Newport Beach after a long illness. He was 73.

Kaufman was one of three justices appointed by Republican Gov. George Deukmejian in February 1987 to replace Chief Justice Rose Bird and two other liberal justices voted out of office in the previous November's elections, and thus was expected to be among the most conservative members of the court.

And he did join the conservative majority in upholding the death penalty and wrote the majority opinion when the court allowed police to erect roadblocks in an effort to get drunk drivers off the road. Kaufman also wrote the majority opinion that allowed a corporate farm to restrict access of union organizers to worker camps on its property.

But he sided with the liberal minority in dissenting on several important civil rulings, including ones that restricted wrongful-termination suits against employers and another that barred the use of state antitrust laws against corporate mergers.

In another case, he joined with liberal justices to uphold the right of criminal defendants to gain access to confidential police brutality complaints.

"Kaufman's been an independent, free-thinking justice, pretty much at the center of the court," UC Berkeley law professor Stephen R. Barnett told The Times in November 1989, when Kaufman announced that he would resign the following January.

"He's been a bundle of sometimes conflicting streaks," Barnett said. "He's backed the little guy against employers, unions, the government, the State Bar and even a church. On the other side, he has showed sympathy for insurers and growers he apparently thinks were victims of liberal bias."

Observers recalled that the scholarly Kaufman could be demanding in questioning attorneys presenting arguments before the high court.

Some viewed his temperament in those instances as bellicose, and suggested that he would have been well served to lower his voice.

Born in Norfolk, Va., Kaufman moved with his family to Los Angeles. He grew up in the Hollywood area, developing an interest in law while in high school. He would later recall taking the bus to the L.A. Civic Center to watch federal court proceedings.

After earning his bachelor's degree at UCLA, he served in the Korean War as an Army lieutenant. Returning home, he attended USC Law School and was editor of the law review, graduating in 1956.

Kaufman worked as a law clerk for Justice Roger J. Traynor of the state Supreme Court and taught at USC before going into private practice in San Bernardino for 13 years.

In 1970, he was named to the State Court of Appeal by Gov. Ronald Reagan. He served there for 17 years before being named to the state high court.

As a member of the appeals court, he was often critical of the higher court's decisions. In 1986, he wrote that its decision prohibiting landlords from barring families with children was "legally and practically inane." And he said that the real harm from "nonsensical" decisions concerning criminal issues was not just that they resulted in hordes of felons being freed, but that they eroded public confidence in and support of the law.

After leaving the court, Kaufman returned to private law practice.

Survivors include his wife, Eileen; two daughters; and five grandchildren.

Funeral services will be at 1 p.m. Sunday at Congregation Emanu El in San Bernardino.

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