SAN FRANCISCO (CN) – The names of judges who used taxpayer dollars to settle sexual harassment and sex discrimination complaints will be made public, thanks to a rule of court clarification passed unanimously Thursday by California’s Judicial Council.
Settlement amounts will also be available in response to public records requests under rule 10.500, revised by the council at its meeting to state that all settlements paid for with public money must be publicly available, including settlements resolving sexual harassment and discrimination complaints against judges.
The change was made at the direction of California Supreme Court Chief Justice Tani Cantil-Sakauuye, who in April charged a working group of two judges, an appellate justice and two attorneys with drawing up the revision.
“I want to make sure there is no ambiguity as to whether courts should be required to disclose those records. The current rule does not make it clear enough that these records should be disclosed,” Cantil-Sakauye said at the time.
Section (f)(7) of the rule previously exempted examinations or investigations of complaints against judges from disclosure.
It now reads: “This exemption does not apply to any settlement agreement entered into on or after Jan. 1, 2010, for which public funds were spent in payment of the settlement, including any settlement agreement arising from claims or complaints of sexual harassment or sexual discrimination. The names of judicial officers may not be redacted from any settlement agreement that is produced under this rule; however, the names of complainants or witnesses, and other information that would identify complainants or witnesses, may be redacted.”
The group’s chair, Justice Marsha Slough, noted the importance of the rule change in light of the ongoing #metoo movement against sexual harassment and gender bias.
“The issue that is before us today is one of national interest, and frankly it should be one of personal interest for all of us,” the group’s chair Justice Marsha Slough told the council Thursday. “In recent times there has been serious problems of sexual harassment and sexual discrimination revealed in the movie industry, in the media, and technology firms, and these problems have also been disclosed in all branches of government across the country. In this situation, the California judicial branch, whose special responsibility it is to articulate and uphold the law, must be particularly vigilant and we must exercise leadership on this topic.”
While Slough said the majority of comments the group received from judges and courts around the state were positive, some had concerns about the rights of judges to privacy and confidentiality regarding proceedings of the California Commission on Judicial Performance, an independent body that adjudicates complaints against judges and disciplines them for misconduct.
Slough said the working group agreed with a comment on the issue by the California Judges Association, and while the wording is not exactly in line with what the association wanted, the working group consented to add: “The 2018 amendments to rule 10.500 do not apply to records maintained by the Commission on Judicial Performance, an independent state entity established under article VI, section 18 of the California Constitution. Rule 10.500 is not applicable to the Commission on Judicial Performance which has separate rules that apply to its work and records.”
In its formal comments to the group, the association also said judges were concerned about disclosure in the case of complaints that had been settled with the expectation that they would remain confidential.
But the working group said the state appellate court settled that question 30 years ago with its interpretation of the California Public Records Act in Register Div. of Freedom Newspapers, Inc. v. County of Orange. In that case, the court ruled promises of confidentiality are not enough to make settlement agreements using taxpayer funds private.
In its response to the judges association, Slough’s group said, “These records are disclosable notwithstanding the parties’ expectations of confidentiality.”
Earlier this year, the Los Angeles Times reported that court system paid $296,000 to resolve three sexual harassment complaints against judges in the past seven years, along with $79,250 since 2010 for outside counsel to investigate complaints against five judges.
The rule revision can be taken as a sign of a cultural shift within the judicial branch on financial transparency, but it’s also reflective of a larger movement to hold powerful figures accountable for misconduct.
Some judges welcomed the change. In a comment to the group, Presiding Judge Brad Hillman of Tulare County said his court had been searching for guidance on how to deal with media requests for records about sexual harassment complaints.
“Like many courts throughout the state, we have received media requests for disclosure of such agreements. This ambiguity in the law has caused us to expend significant staff resources seeking direction and counsel,” Hillman wrote. “I have spent time on these requests, as has our CEO and many members of our management staff. Tulare County is considered to be a medium size court, with 20 judges. We don’t have the resources for a full-time media relations staff as do many of the larger courts. Having some clarity in how to respond to these requests would make it easier for smaller courts to handle them expeditiously.”
Presiding Judge Dan Buckley of Los Angeles, a former Judicial Council member, said Thursday that his court fully supports the revised rule, especially with the added clarification that it doesn’t apply to Commission on Judicial Performance cases.
“Judicial independence relies in part on judicial accountability. The public has the right to know how the judicial branch spends taxpayer funds,” he said during the meeting’s public comment period. “The modification does just that.”
Despite its initial apprehensions, the California Judges Association also supported the rule. After the meeting, association president Judge Stuart Rice said, “With the addition of the language that the rule only applies to settlement agreements involving the expenditure of public funds, we support the council’s decision on this important issue.”