Bird Watching

Charges of leaks and delays

California's Supreme Court was once held in high repute for its innovative and wise decisions. Keeping well above politics, the court carried out deliberations in the quiet privacy of its stately chambers. So much for tradition. The current court, headed by Chief Justice Rose Elizabeth Bird, 42, is about to have its linen laundered in public, black robes, starched collars and all. Last week the state's commission on judicial performance (a nine-member board established in 1960 to hear complaints against California judges) began televised hearings into alleged improprieties surrounding the court's handling of four controversial decisions.

At issue: Did one or more of the supreme court's seven judges delay announcing decisions on politically sensitive cases that could have hurt Chief Justice Bird's chances of winning approval by the voters? Did any of the justices or staff members leak confidential information about the decisions to the press?

It was Rose Bird herself who asked for the investigation. She has been under fire ever since she was appointed to the top justice post by Governor Jerry Brown in 1977. Because she had no previous judicial experience, critics claimed that she was unqualified to administer the state's 255 courts and 2,000 judgeships or to make significant legal decisions. Her opponents charged that Bird, who served as agriculture and services secretary in Brown's cabinet, was named to the position only because she was a woman and had long-time political ties with the Governor.

Under California law, such appointments are confirmed on a straight yes or no ballot at the next statewide election. Although the confirmation vote is usually a rubber stamp, in Bird's case it became the occasion for pointed political protest. Contending that she was "soft" on crime, conservatives launched a $300,000 effort to oust her from the court. Bird survived the election with 52% of the vote, even though details of the court's potentially unpopular decision on an armed robbery case were leaked to the Los Angeles Times and appeared on the day of the election.

Within six weeks, the court released its actual decisions on this and three other controversial cases. Of the four, the robbery case became most notorious because of the apparent accuracy of the leaked information and the law-and-order aspects of the case. California's "use a gun, go to prison" law, signed by Governor Brown in 1975, mandates prison sentences for certain specific crimes in which a gun is used. In the case at issue, Harold Tanner used a gun in the robbery, but the weapon was not loaded. The trial judge dismissed the gun charge and placed Tanner on probation. In a decision that indeed proved to be unpopular, the supreme court upheld the judge's power to do so. Ironically, the court reversed itself last week, following a rehearing in March. One justice changed his vote, tipping the majority in favor of mandatory sentencing. However, since Tanner spent a year in the county jail, and has otherwise met the conditions of his probation, he will remain free.

Evidence presented last week shows how much squabbling and infighting are involved when the court arrives at a decision but indicates no specific delaying tactics. Documents do, however, support claims that the justices or members of their staffs may have leaked confidential information to the press.

The commission will determine whether charges should be brought against any justice. Whatever the outcome, the legal community frets that public airing of the matter may hurt the California judicial system. Says Stanford Law Professor Gerald Gunther: "In an immediate sense, it will add to the court's already damaged prestige." But, Gunther concludes, "in the long run, the hearings may help some of the justices search their souls and try to do better in their personal relations and at the quality level." -

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