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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.