Complaints Against California Judges Can Remain Secret

SAN FRANCISCO (CN) — The state commission in charge of investigating and disciplining judges for misconduct won’t have to turn over records on complaints against judges to the California state auditor, a judge ruled Wednesday.

Superior Court Judge Suzanne Bolanos said the state constitution grants the Commission on Judicial Performance the authority to keep certain records confidential, even from a government agency such as the State Auditor’s Office.

The Commission on Judicial Performance sued State Auditor Elaine Howle in October over the scope of an audit ordered by the Legislature on the commission’s budget, rules, standards and procedures.
The commission said it wants to protect the rights of judges who have been privately admonished, and the privacy of witnesses and those who file complaints against judges.

Its chief areas of concern are audit topics dealing with the commission’s complaint review process, case outcomes, and how it evaluates evidence and witnesses.

Bolanos’ ruling also bars Howle from evaluating its case outcomes for the past five years or conducting any inquiry into the commission’s standards and processes to determine how it decides its cases and how it handles witnesses and considers evidence, “to the extent such inquiry involves reweighing evidence or second-guessing the propriety of Commission on Judicial Performance’s determinations in individual matters presented to it.”

In a phone interview, Howle’s attorney Myron Moskovitz said the judge’s ruling undermines the point of having the Commission on Judicial Performance.

“The state auditor said if she can’t review those confidential files she can’t do a proper audit. So the affect of the decision is to stop the audit entirely,” Moskovitz said.

The Legislature in August ordered the first-ever audit of the commission, which was formed in 1960 to investigate impropriety and wrongdoing of any of California’s roughly 2,000 judges.

The unanimous vote to audit the commission followed public outcry from activists complaining of leniency for errant judges.

Some judges have claimed quite the opposite, complaining of harsh discipline for minor offenses such as discourteous comments to litigants or potential jurors.

The California Supreme Court last year overturned the commission’s advisory letter against Ventura Superior Court Judge Nancy Ayers for keeping a guide dog she was training in her courtroom.

The commission in September this year publicly admonished Los Angeles Superior Court Judge Edmund Clarke Jr. for criticizing a woman who claimed to have “severe anxiety” over jury duty, and being impatient with another prospective juror who did not speak English well.

In an email late Tuesday, Michael von Lowenfeldt, the attorney representing the commission, said he was happy with Bolanos’ ruling, which he said followed the law.

“The confidentiality of CJP complaints and investigations is well established, and we are pleased with the court’s correct analysis of these issues,” he said.

But state Sen. Hannah Beth Jackson, who chaired the Senate Judiciary Committee that initiated the audit, disagreed.

“Despite today’s decision, I continue to believe that no state agency, funded by taxpayer dollars, is above the law, nor above its fundamental responsibility to be accountable and transparent to the public,” said Jackson, D-Santa Barbara. “I believe this decision will and should be appealed, and I look forward to that decision.”

Moskovitz, Howle’s attorney, said he’ll appeal the decision.

“The Legislature has decided and enacted statues that direct all state agencies including cup to show their confidential files to the state auditor,” Moskovitz said. “The judge found that to be unconstitutional, but she’s wrong about that. The law is the Legislature has complete authority to regulate unless the Constitution expressly says she can’t, and there’s no such language in the Constitution.

“The other problem is the whole point of having CJP is to ensure respect for the judiciary,” he added. “You can’t have that unless people have respect for CJP and they can’t have that respect unless they know what it’s doing and that’s the whole point of an audit.”

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