Fear Driving Judges Commission’s Audit Fight, Judge Told

SAN FRANCISCO (CN) – An attorney for the California State Auditor told a judge Thursday that the California Commission on Judicial Performance is trying to evade an audit of its operations out of fear.

“This case is based on fear, it’s not based on facts,” attorney Myron Moskovitz said. “They’re just afraid of an audit because they’ve never been audited they don’t know what it consists of.”

The state agency in charge of investigating and disciplining judges for misconduct sued State Auditor Elaine Howle this past October over the scope of an audit ordered by the Legislature on the commission’s budget, rules, standards and procedures.

In court on Thursday petitioning a judge to keep Howle’s office from accessing records on judges’ cases, commission attorney Michael von Loewenfeldt said the commission welcomes an audit, but the state Constitution gives it the authority to designate some records as confidential.

According to its petition, the commission 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.

“This is not about whether the auditor is trustworthy or will leak documents. The auditor has no right to see these documents under the commission’s rule,” von Loewenfeldt told San Francisco Superior Court Judge Susan Bolanos. “The auditor has to follow the Constitution, just like everyone else.”

Von Loewenfeldt referred to 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.”

The commission’s attorney said Moskovitz was trying to make a policy argument, but the real question is can the Legislature, which ordered Howle to audit the commission, override the commission’s constitutionally guaranteed rule on confidentiality.

“It’s not about the CJP being immune from audit. It’s just about this question of confidentiality,” he said.

But Moskovitz argued that the whole purpose of an audit is for an auditor to review confidential documents, which Howle does all the time for every other state agency – including the state bar, which disciplines errant attorneys, and the University of California, which Howle said interfered with her investigation and hid $175 million in reserve funds from the Legislature and the public.

“Their rule says certain files are confidential, we’re going to keep them confidential. We’re not breaking their rule,” Moskovitz said, adding that Howle doesn’t intend to overturn or second-guess the commission’s rulings.

“If the CJP says they’re doing one thing and in fact they’re doing something else, that’s a problem. And the Legislature and the public need to know about it,” he said.

Bolanos took the arguments under submission.

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