The California Supreme Court, already shaken by a policital challenge to its chief justice, will face a formal inquiry into whether it violated judicial ethics by withholding announcement of a sensitive decision until after the Nov. 7 election day, according to court sources.
The court reportedly withheld a decision to void a popular law requiring prision sentences for persons convicted of using a gun during a robbery.
On election day, because of an unusual California law, Rose Elizabeth Bird, the chief justice of the court, had her appointment to the bench by Gov. Edmund G. (Jerry) Brown Jr. submitted to the electorate for confirmation.
Her opponents painted Bird as an unqualified judicial liberal whose court decisions have given comfort to criminals. Bird won confirmation with only 51.7 percent of the favorable vote - a margin small enough that the controversial decision, had it been released earlier, probably would have affected the election.
Any finding of judicial misconduct during the review would almost certainly result in an attempt to recal Chief Justice Bird, who repeatedly has said that no misconduct took place.
The review would likely be conducted by the state Commission on Judicial Performance which is appointed by the chief justice and which has broad powers to investigate charges of judicial misconduct.
Because of the unprecedented nature of the investigation, it is unclear what remedy the commission could offer if misconduct were discovered.
California Supreme Coult Justice William Clark brought the court's Justice William Clark brought the court's precarious position into the open Tuesday. In an interview with The Washington. In an interview with The Washington Post he acknowledged that he had refused to sign a statement saying that in a key case "neither the final determination nor the filing of that decision has been delayed for political or any other improper reason."
Clark said he had "decisive reasons" for not signing the statement circulated by Justic Matthew O. Tobriner, the reputed author of the un-annouced 4-to-3 decision to strike down the law requiring a prison sentence for persons using a gun in commission of a robbery.
But Clark said he did not want to go into his reasons because he expected to be called to testify under oath about them in the future. This confirmed what other court sources said privately - that a formal judicial review by a state commission created for that purpose will be held in an effort to clear the cloud that has come over the Court.
The California Supreme Court is respected nationally for its quality and the pioneer role it played, often ahead of the U.S. Supreme Court in the Earl Warren era, in civil liberties decisions. It has rarely, if ever, been tainted with a hint of scandal.
The court, however, became a political battle ground after Gov. Brown appointed as chief Justice astate cabinet member with no judicial experience, Rose Elizabeth Bird. The appointment infuriated the old-line legal establishment of California and deeply disppointed as chief justice a state cabinet who reportedly had been told by Brown that he would be named chief justice.
This year, conservative critics of Bird mounted a campaign against her concentrating on decisions, particularly one in a well-publicized rape case, which, they said, showed that Bird was "soft" on criminal defendants.
Almost lost in the right-wing clamor was a charge made by another ill-financed committee, which court insiders consider closer to the mark. They say that Bird is able enough legally, but that she is tempermental and authoritarian in her administration of the state's vast court system and tends to appoint politically minded cronies to important positions.
Bird is herself politically minded and an effective campaigner. While declaring that she would not campaign for her confirmation, she quietly visited newspaper editorial meetings around the state and won strong and possible decisive support in the election.
On election day, the Los Angeles Times, which had strongly supported Bird editorially, ran a front page report saying that the Supreme Court had decided to overturn the mandatory sentencing law, known as People vs tanner, but had had not made the decision public.
The claim and the report were denounced as untrue by Bird, who the same day won the narrow 51.7 percent victory, the closest margin ever in a California judicial confirmation election.
The day fater the election the Los Angeles Daily Journal, a respected legal newspaper, reported that as many as six completed decisions were sitting on Tobriner's desk awaiting the end of the election. They included to be filed rulings to strike down mandatory prison sentences for rape and for large heroin sales.
Both Tobriner and Bird denounced the allegations as false and Tobriner sought to dispel further criticism by circulating a statement saying that no decisions had been withheld. He claimed that the statement would "remove that cloud and restore confidence in the evidence of our judicial process."
If anything, the statement has had the opposite effect. Clark refused to sign it and another justice, Frank Richardson, would do so only after the qualifying words, "to the best of my knowledge and belief."
Now, columnists and newspapers that backed Bird in the election are demanding a thorough investigation. The Ventura Star-Free Press, ordinarily a Democratic newspaper that had supported Bird, wrote recently: "It's bad enough when politicians put politics ahead of justice - as appeared to be happening with the effort to impeach Ms. Bird - but it's much worse when judges put politics ahead of justice - as appears to be happening now."
Gov. Brown, never slow to capitalize on an appealing political issue, already has sensed the way the wind is blowing on the court question. The day after the election he promised that he would "write a constitutional amendment with my own hands," if necessary to restore mandatory senstencing if the court strikes it down.
Tobriner said he would favor an investigation by "the appropriate body" which he said was the State Commission on Judicial Performance.
"The record is clear and I would certainly welcome an investigation," Tobriner said.
Interviews with key court justices and sources gave this picture of what has happened.
The California Supreme Court heard oral arguments last February in the case of Harold E. Tanner, who two years ago robbed a San Mateo grocery store brandishing an unloaded gun. The original judge in the case ruled that California's "use a gun, go to prison," law of 1975 was unconstitutional, but his ruling was overturned by an appellate court.
Following Supreme Court arguments in the Tanner case there was a tentative vote and assignment of opinions. Tobriner was assigned to write the majority opinion, which declared the law unconstitutional, while Clark was assigned the dissent.
After circulating the opinions to all justices, under the court's procedure, the decision was ready for filing late in August! At this point Bird became angry over a footnote in the dissenting opinion in which Clark said that Bird, in a separate opinion supporting the majority, was inconsistent except that she always appeared to favor criminal drfendents. Clark contrasted Bird's opinion in the rape case being used against her politically, in which Bird argued that the legislative will should be followed even in "abhorrent" crime, with the Tanner case, in which Birc contended that the legislature had no power to authorize mandatory sentences.
Bird accused Clark, a frequent conservative dissenter, of taking a political position and insisted he remove the footnote. Clark responded to what he considered unfair pressure on Bird's part by elevating the footnote to the body of the opinion. In the process, tempers frayed, Bird wept, Clark shouted and other justices expressed themselves emotionally.
When the opinions reached Tobriner, a strong supporter of Bird's confirmation, they simply remained on his desk, in contrast to the usual court custom. One of the dissenting judges was persuaded, reportedly by Bird and Tobriner, to write a separate dissent, an action which under the court rules requires recirculation of the opinion to everyone.
It was this latter action, court sources say, that gives Tobriner grounds for arguing that the Tanner opinion has not been completed.
"Tobriner was technically right but morally wrong because the case was substantially decided and was held for artificial reasons," said one court source. "This had never been done before. It was a cover-up, but one that was accomplished within the framework of court procedures."
Now, however, the outside objections from law enforcement officials around the state and from some newspapers that supported Bird appear to have made a technical defense an insufficient one.
There is some talk of recall after the case is formally filed, probably against Bird. Tobriner, a 16-year veteran of the court, has such stature that it is unlikely that a recall effort could be successful against him. However, even some of the majority justices now say privately that the allegations are sufficiently grave that they believe an inquiry is needed to help restore confidence in the state's high court.
Bird, in seclusion this week with family and friends, was not available for any comment.