California Judicial Watchdog Gets Leg Up on Secret Records

SAN FRANCISCO (CN) – Attorneys vying to unearth confidential records from California’s judicial watchdog appeared to stumble in court Friday over the separation-of-powers doctrine.

“The legislative history seems to confirm the CJP’s argument that the documents remain confidential,” Judge Susan Bolanos with the San Francisco Superior Court said this afternoon, using an abbreviation for the Commission on Judicial Performance.

After California lawmakers voted unanimously to audit the constitutionally established disciplinary body last year, the commission filed a petition with Bolanos to keep state auditor Elaine Howle’s nose out of its books.

Friday’s hearing ended without a ruling but Bolanos found support for the commission’s argument in Proposition 190, a ballot initiative approved by California voters in 1994 that shined a light on what were then closed-doors proceedings.

“Prop. 190 changes confidentiality rules to make formal proceedings public, but they didn’t go any further than that,” Bolanos said. “That’s exactly where they drew the line. Wouldn’t it have been reasonable if in fact there was a desire to change the confidentiality rules beyond that it would have been done at that time?”

Representing the auditor, attorney Myron Moskovitz told Bolanos that reviewing the commission’s records is a logical extension of the issues that inspired Prop. 190.

“This never crossed anybody’s mind,” Moskovitz said. “You don’t amend the constitution to deal with hypotheticals.”

Moskovitz accused the commission of trying to undermine transparency goals.

“This is a backdoor way of stopping the whole audit,” the attorney said. “They say, ‘go ahead and do your audit without these files.’ But it cannot be done.”

Howle is seeking records related to the commission’s investigations, but the commission says it has a duty to protect the rights of judges who have been privately admonished, as well as the privacy of witnesses and individuals whose complaints inspired a commission review.

Moskovitz also assured Bolanos that that releasing commission documents to Howle will not making them public.

“Confidentiality means you don’t publish, and the state auditor doesn’t publish,” Moskovtiz said. “You can resolve this case very easily by saying the state auditor has no intention or plan to violate confidentiality; that is that they’re not going to release anything to the public.”

Commission attorney Michael von Loewenfeldt urged the judge meanwhile not to stray from the law at issue, specifically Article IV, section 18, subdivision (i)(1) of the California Constitution, which says: “The commission may provide for the confidentiality of complaints to and investigations by the commission.”

“Just like at the last hearing Mr. Moskovitz wants to talk about everything except the legal issues,” von Loewenfeldt said. “These arguments being made by the auditor are being made because they don’t have a legal argument that is supported by case law or the legislative history.”

Moskovitz said the audit cannot go forward without full disclosure, and that to keep the files secret will only further erode public confidence in the commission.

“Our California judiciary, all of our judges, depend on public confidence,” the attorney said. “Without that it doesn’t work. And that’s the whole purpose of the CJP: to make sure that judges behave so the public has confidence in judges. But if the public doesn’t have confidence in the watchdog, it all goes out the window. The state auditor is the only vehicle we have in the state of California for making that happen.”

Bolanos ordered both sides to file proposed statements of decision by Nov. 27.

When asked if he anything to add, von Loewenfeldt declined. “I don’t have a polemic, just a legal argument,” he said.

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