SACRAMENTO, Calif. (CN) – In a first-of-its-kind report issued Thursday, California’s state auditor found the state’s method for investigating judicial misconduct is shoddy, outdated and likely letting bad judges off the hook.
State Auditor Elaine Howle ripped the Commission on Judicial Performance in an 85-page report, finding it routinely ignored evidence during investigations of complaints against judges and called for changes to the state constitution to fix the feeble disciplinary process.
“We found that flaws in the commission’s investigative processes could allow judicial misconduct to go undetected and uncorrected,” the report states. “Examples of alleged misconduct from the cases that we reviewed include threatening to assault litigants, inappropriate comments, and inappropriate relationships with subordinates.”
Reacting to claims from activists that the commission isn’t strong on enough on errant judges, lawmakers in 2016 ordered Howle to dig into the constitutionally established body in charge of investigating and disciplining judges. The announcement jarred the commission, which was to be audited for the first time since its inception in 1960.
The lawmakers’ decision put the commission on the defensive, and it sued in state court to limit the scope of Howle’s search. After some back-and-forth rulings, Howle was ultimately allowed to continue.
Howle and her office ended up reviewing 30 of the commission’s investigations of judicial misconduct between 2013 and 2018. Thursday’s report comes with a telling title “Commission Judicial Performance: Weaknesses in its Oversight Have Created Opportunities for Judicial Misconduct to Persist.”
According to the audit, in nearly a third of the reviewed cases that advanced past the intake phase investigators didn’t follow all leads or attempt to recover evidence. It also found investigators missed patterns of repeated allegations against individual judges.
Howle probed one investigation sparked by a number of complaints of a judge making intimidating comments from the bench.
While court reporters initially told the investigator they may have audio of the judge’s comments, they later back-tracked and said finding the audio was an “onerous task.” The investigator could have formally requested the audio files but didn’t, telling Howle that processing the recordings “would be time-consuming” and that she believed the strength of her other evidence.
Another case involved allegations that a court restricted public access to a particular civil hearing. The investigator did interview the complainant, one of his friends and the judge, but didn’t bother to talk with the court staff or look for video evidence. The investigator eventually observed another of the judge’s proceedings, but only after telling the judge beforehand.
“These unanswered questions can have a direct, negative effect on the commission’s ability to issue appropriate discipline because doing so requires that its staff find clear and convincing evidence of misconduct,” the audit continues.
If lack of funding is the problem, the audit suggests that the commission tell lawmakers of the importance court transcripts and audio recordings can have when investigating complaints. California’s 58 superior courts have varying levels of reporting services and many smaller courts have cut back due to budget constraints.
The commission was formed in 1960 and originally included nine members. Most of its proceedings were confidential, and in 1994 voters passed Proposition 190 mandating open proceedings and increased the membership to 11.
Proposition 190 also changed the composition of the commission: three judges appointed by the California Supreme Court, two attorneys appointed by the governor, and six citizens – two appointed by the governor, two by the Senate Committee on Rules, and two by the Speaker of the Assembly.
As outlined in the audit, commissioners are involved in both the investigatory and disciplinary process. Howle says this can be unfair to judges, as commissioners could be aware of underlying evidence not at issue. She suggests the commission be split into an investigative and disciplinary body.
Along with a lacking investigatory process, the audit says the commission should modernize and open up to the public: The commission only accepts complaints through the mail and doesn’t hold public meetings to discuss rule changes. It recommends that lawmakers issue a one-time $419,000 budget item to help the commission hire a limited-term investigations manager and update its electronic case management system.
Gregory Dresser, commission director-chief counsel, says the commission intends to implement Howle’s suggestions immediately.
“We fully cooperated with the audit and I’m in favor of improving our work,” Dresser said in a phone call.
In the end, Howle says the ultimate fix for the commission will have to come from lawmakers and voters.
“The Legislature should propose and submit to voters an amendment to the California Constitution to reform the commission’s structure and disciplinary proceedings so they are aligned with best practices and ensure that the public has a significant role in deciding judicial discipline,” the audit concludes.