The embattled California Supreme Court won a limited victory yesterday when the State Commission on Judicial Performance decided that no formal charges of misconduct would be filed against any of the seven justices.
But it was more in the nature of a reprieve than a pardon. In a two-page report on its investigation of purported ethical misconduct, the commission complained of "certain deficiencies" in the law that hindered its inquiry, and urged changes in the California constitution.
A source close to the investigation put it more bluntly. The commission, he said, "had been given the responsibility for invetigating the court without the authority to do the job."
Six members of the commission, four appointed by the court they were investigating, participated in the decision. The other two were public members appointed by Gov. Edmund G. (Jerry) Brown Jr., whose political reputation was involved because of his appointment of Chief Justice Rose Elizabeth Bird.
The investigation was triggered by an election-day 1978 report in the Los Angeles Times that a controversial high court decision had been delayed until after the election to help Bird win confirmation from the voters. The story quoted "well-placed court sources."
Since Bird narrowly survived the challenge by "law-and-order" groups protesting her decisions in criminal cases, many court observers believe she might have lost if the controversial decision had been released before the election. The decision, since reversed, invalidated a portion of California's 'use-a-gun, go-to prison" law.
The commission investigated the charges, calling all the justices and many of their aides to testify after a lengthy inquiry by special counsel Seth M. Hufstedler. But in mid-investigation the inquiry was blocked by Supreme Court Justice Stanley M. Mosk, who said the state constitution prohibited an investigation in public.
Mosk, widely believed to be a key source for the Los Angeles Times report, lost his point in a lower court and finally carried his appeal to the state Supreme Court itself. The justices disqualified themselves and appellate judges who sat in their place ruled in favor of Mosk.
The ruling that backed Mosk also prohibited the commission from commenting on its investigation, which accounted for the terse nature of yesterday's announcement issued in San Francisco.
However, it was evident that a number of commission members felt severe constraints during the later stages of the investigation. Hillel Chodos, the most experienced trial lawyer on the commission, withdrew after Mosk forced the closing of the inquiry. Another commissioner resigned soon afterward.
The action yesterday shifted battles over the Supreme Court into the legislative arena. The Los Angeles Daily Journal, a legal newspaper, quoted state legislative leaders as indicating they favored constitutional changes to make the commission's job easier. And John Huntting of the Oakland-based Citizens for Law and Order termed the action "a whitewash" and called for a full-scale legislative investigation.
However, the Supreme Court remains under another cloud. Its members have not been paid for two months because of a ruling by Sacramento Superior Court Judge Joseph Babich that the court was violating a state constitutional provision requiring rulings within 90 days from the filing of a case.
Babich found that the court ignored the 90-day rule, while requiring all other courts to comply with it.
State Controller Kenneth Cory announced last week that he would seek an injunction enabling the justices to draw their salaries while the case is under appeal.