The California Supreme Court's most conservative member today disputed charges that he had proposed delaying a controversial pending case until after last November's election.
In his second day of testimony before the California Commission on Judicial Performance, Justice William P. Clark contradicted the allegation, made last week by senior Justice Matthew O. Tobriner and since restated in slightly different form by Chief Justice Rose Bird.
As Clark recalled the two conversations, he was replying to a charge made by Bird aides who said he was "politically motivated" in making a footnote reference to an unpopular rape case decision in which Bird wrote the majority opinion.
"I was saying, in effect, 'Rose, look, how can this be politically motivated when we realize I don't have any say or power or vote in the filing of the case'," is the way Clark recalled explaining his position to Bird. "'That's your domain'."
Clark's testimony presented the eight-member commission with the difficult task of deciding whether any of the three justices was lying under oath or whether all of them simply have selective and self-serving memories. The accounts were so different at some points -- particularly statements by Clark and Tobriner -- that it sounded as if the justices were remenbering separate conversations.
The precedent-shattering public hearings into alleged unethical judicial conduct were prompted by charges attributed to court sources in an election-day story in the Los Angeles Times. These sources were quoted as saying that the court had decided to strike down a California law requiring prison sentences for persons who use a firearm in the commission of a robbery but that Tobriner was holding up the decision to help Bird, who faced voter confirmation in the election.
Behind the sensational charges, however, the supposed misconduct on the court may have been nothing more than a bitter and somewhat petty personality dispute between Bird and Clark, revolving around issues as trivial as the used carpeting in the chief justice's office.
According to her testimony and Clark's, Bird stopped speaking to her rival last summer when Clark persisted in citing the controversal rape case known as Caudillo in his dissenting opinion on the mandatory prison sentence case. The Caudillo case, in which the court, over the dissent of Clark and another justice, refused to give a longer prison sentence to a notorious rapist, was widely used by groups seeking to defeat Bird at the polls.
As Clark saw it, Bird had argued in the Caudillo opinion that legislative power was supreme, but in the mandatory prison sentence case had reversed herself and said that the legislature had no power to require automatic prison sentences for armed robbers.
Bird considered the issues separate. When Clark persisted in his view, Bird snubbed him and his staff for weeks. Clark recalled that when his secretary went in to pick up Bird's discarded carpeting, which she had been promised, she was told she could not have it.
"My carpeting has been given to others," Clark quoted the secretary as saying.
In this atmosphere, neither Bird nor Clark was willing to talk to each other or change views.
Some commission members professed surprise bordering on incredulity that neither justice seemed willing to take direct action to patch up what started as a quarrel between their staffs.
Trying to ascertain why Clark had relied soley on staff accounts instead of telephoning Bird, Commissioner Hillel Chodos, a Beverly Hills trial lawyer, exclaimed at one point to Clark, "Is it really so busy up there that you can't even take time out to make a phone call for something like that?"
The hearing is scheduled to resume Thursday with Clark still on the witness stand. Before he testifies, the commission will attempt to decide in private session whether to seek a contempt order against Bird, who refused Monday to answer six questions put to her by special counsel Seth M. Hufstedler. The questions concerned news leaks.