AUGUST 11, 2017
A California judicial commission that’s operated in secrecy for more than five and a half decades is engaged in a legal battle to thwart an audit ordered by state legislators and Judicial Watch has filed a court brief supporting the long overdue probe in the name of transparency. A court hearing has been rescheduled three times and shuffled around to different judges, with the latest scheduled for August 17 before Judge Suzanne Bolanos in San Francisco Superior Court. The case sheds much-needed light on the unbelievable history of a taxpayer-funded agency that’s conducted its business in private—and with no oversight—for 56 years, even though protecting the public is among its key duties. The agency is known as Commission on Judicial Performance (CJP) and it’s charged with enforcing rigorous standards of judicial conduct and disciplining judges in the nation’s largest court system.
California’s court system serves over 37 million people and has more than double the judges (1,882) of the federal judicial system, which has 840. The CJP should serve as a tool to keep the system in check. Instead the commission has dismissed 90% of complaints about judges in the last decade, according to figures published in a California newspaper. Only 3.4% ended in disciplinary action and less than 1% led to public censure. None of the decisions were transparent, the news story reveals, and critics have demanded accountability for CJP for years, asserting that the commission gives “biased and inept judges a pass.” In its 2016 annual report, CJP discloses that 1,079 of the 1,210 complaints it received were dismissed after “initial review.” Discipline was issued in only 45 cases with more than half of the offenders receiving an “advisory letter.” Eleven others received “private admonishment,” six got “public admonishment” and eight “public discipline.” Only one judge was removed from office and another received public censure. Offenses included on-bench abuse of authority, administrative malfeasance, bias or appearance of bias and improper political activities.
Last year, a California legislative committee authorized State Auditor Elaine Howle to conduct the first-ever examination into the CJP, including whether the commission upholds due process when considering allegations against judges and how investigators determine which complaints to dismiss. Lawmakers finally acted after mounting pressure from a variety of sources, including Court Reform LLC, a group that pushes for fair and transparent courts that’s found CJP is “ineffective at enforcing judicial discipline, wastes public money and is too secretive about its operations.” An in-depth probe conducted by the group compares the data and policies of judicial disciplinary commissions in California and three other states and finds that the CJP is “under-investigating and under-disciplining judicial misconduct and misappropriating public funds.” It calls for the state auditor to investigate. Howle is appointed by the governor and her office functions as an independent external auditor that provides nonpartisan, accurate and timely assessments of California government’s financial and operational activities.
To stop the audit, the CJP sued Howle and her office asserting that a probe would violate its constitutionally granted power to conduct confidential investigations. The complaint also says that allowing a review of its operations would violate the separation of powers doctrine that prohibits one branch of government from intruding on the powers of another. In her response, Howle fires back that the CJP does not have special immunity because it was created by the state constitution and that the California legislature regularly directs the auditor to audit other agencies established by the constitution, including the State Bar, Public Utilities Commission and the University of California. Furthermore, Howle’s attorneys write, audits of other state agencies, including the Attorney General’s Office and Judicial Council, have not interfered with their core functions. “No court has ever blocked the Legislature’s effort to obtain information about a state agency’s performance via an audit,” Howle’s response to the court states. “There is no reason—and no legal justification—to start now.”
In its lengthy friend of the court brief (officially known by its Latin term, amicus curiae), Judicial Watch acknowledges that there may be a valid reason to keep certain parts of CJP’s work confidential, but the lack of information regarding its procedures and overall judicial discipline undermines public confidence in the integrity and independence of the state judiciary. “An audit issued by a competent, neutral auditor advances public confidence in the integrity of the audited public agency,” Judicial Watch writes in its brief. Judicial Watch also mentions its firsthand experience with CJP’s judicial complaint process and addresses CJP assertions that an audit would damage confidentiality. “In Judicial Watch’s experience, CJP’s disciplinary process is opaque with virtually no information publicly available about how the CJP handles complaints or when, if at all, it acts. Judicial Watch has been unable to ascertain if any action was ever taken regarding its complaints.” Regarding the confidentiality issue, Judicial Watch points out that confidential information is regularly shared between governmental agencies without the information losing its confidential status.
CJP was established in 1960 as a state agency to investigate complaints of judicial misconduct and incapacity as well as for disciplining judges. It has 11 members that include one appellate court justice and two superior court judges appointed by California’s Supreme Court. The others include two attorneys and two lay citizens appointed by the governor and four additional lay citizens appointed by the Senate Committee on Rules and Speaker of the Assembly. Members are appointed to four-year terms. The CJP’s mandate is to protect the public, enforce rigorous standards of judicial conduct and maintain public confidence in the integrity and independence of the judicial system. It’ difficult to accomplish that in absolute secrecy.
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