A Clouded Conclusion in California

A probe of the state's supreme court ends with no charges

It began almost a year ago as an attempt to "clear the air" and "restore public confidence." When it ended last week, it was apparent that an unprecedented and excruciating investigation of the California Supreme Court had not succeeded in achieving either goal. The final report by California's commission on judicial performance briefly stated that "no formal charges will be filed against any supreme court justice." It was a less than conclusive judgment and thus left impaired the reputation of a court long considered among the most enlightened in the nation.

The commission had set out last January to examine two questions: 1) Had the supreme court, as charged in the press, delayed the release of four politically sensitive decisions until after Election Day, 1978, in order to boost Chief Justice Rose Bird's chances for confirmation by the voters? and 2) Had any of the justices or members of their staffs leaked word of such a ploy to the Los Angeles Times, which printed the story on Election Day?

Bird herself had called for the investigation last Nov. 24. A liberal 43-year-old activist with no prior judicial experience, she had been opposed by law-and-order conservatives and some of the legal establishment ever since her surprise appointment in 1977 by Governor Edmund G. Brown Jr. By last November, under the pressure of allegations of political maneuvering by the court, she decided that something had to be done to restore confidence in the state's highest tribunal.

The commission entrusted with the investigation is composed of five judges appointed by the supreme court, two lawyers named by the governors of the state bar, and two lay people chosen by the Governor. In existence since 1961 to hear complaints and bring charges against wayward judges, it now found itself faced with the ultimate test, a probe of the supreme court. Under instructions from California's judicial council, the commission was required to conduct a public hearing, and it launched one last June, under the glare of television lights, after a five-month closed inquiry during which it examined documents and took depositions. For the next four weeks, five of the justices and 13 staff members presented a picture of the California Supreme Court as a place where personal pettiness and inefficiency ran rampant.

According to the testimony, Bird and Justice Mathew Tobriner, both liberals, frequently had note-taking aides sit in on their conversations with conservative Justice William Clark because they did not trust him. The antagonism between Bird and Clark reached the point where the chief justice refused to speak to either him or his clerks. More important, the testimony indicated that the court's procedures were slow, cumbersome, even archaic. That view was echoed by Robert Thompson, a former California appeals court justice, who told TIME Correspondent Edward J. Boyer that the court was taking on too many cases for review.

The public disclosures came to a halt on July 17, when a state appeals court agreed with Justice Stanley Mosk's argument that California's constitution prohibited public hearings. The commission then took the matter to the supreme court, which, despite the investigation, had been going about its business at the usual pace since November.* Six of the justices, sensing conflict of interest, stepped aside in favor of substitutes chosen by lot from the state's intermediate appellate court. The seventh, Justice Frank Newman, declined to follow suit, thus forcing the substitutes to disqualify him. That settled, the "shadow" supreme court upheld Mosk. The dispirited commission quietly concluded its hearings and issued its three-page report, in which it pointed out that the Mosk decision precluded it from going into detail.

The fuzzy conclusion leaves the court with an image problem. The Los Angeles Times reported last week that while 46% of California's voters hold a favorable view of the court, 40% regard it unfavorably. The court's reputation in the legal community has suffered less, according to U.C.L.A. Law Professor Kenneth Karst. Lawyers, he says, are swayed more by the quality of the court's decisions than by the texture of personal relationships on the bench. And quality was long a hallmark of the California court, particularly in its lucid and pioneering decisions on suspects' rights, faulty consumer products and tenants' rights.

Those who opposed the open investigation from the start have had their fears confirmed. "It was unfortunate in the first place," says Harvard Law Professor Laurence Tribe. "No ending would have undone the harm triggered by the proceeding itself." Others dismiss such apprehensions as exaggerated. "The judicial institution has survived some fairly bizarre judicial behavior, and I daresay it will survive the California investigation," Chicago Lawyer Frank Greenberg, former member of the Illinois judicial inquiry board, wrote in the October American Bar Association Journal.

Yet, others are troubled that the commission was kept from reaching a definitive judgment at the end of a costly ($510,000) investigation. Says Commission Member Thomas Willoughby:

"Rather than build up confidence in the judiciary, the report may well erode confidence. With a full public report the court would have looked better. It would have been protected against charges of a whitewash. Because we weren't able to explain our action, several questions were left open."

*Though not at the usual pay. A century-old provision in the state constitution gives courts only 90 days to decide a case once it has been submitted. A superior court judge found the high court out of compliance and cut off the justices' paychecks for September and October. The judge's order has been appealed, and arguments are set for this week.

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