Judges’ Commission Fights Scope of Audit

SAN FRANCISCO (CN) - The California Commission on Judicial Performance is challenging the scope of an audit of its operations ordered earlier this year by the Legislature, saying the state Constitution prohibits the review of its core functions and confidential records.

"If you imagine for a moment an auditor asking a court 'We want to know how you resolve cases,' you can see where there's a concern," commission attorney James Wagstaffe said in an interview.

Invoking the separation of powers doctrine that prohibits the Legislature from interfering with the judiciary, the petition asks that the state auditor refrain from examining how the commission investigates complaints against judges and decides cases.

The commission also wants the state auditor barred from accessing confidential records related to its investigations, to protect the rights of judges who have been privately admonished and the privacy of witnesses and those who file complaints against judges.

This past August, the Legislature voted unanimously to audit the commission, a constitutionally established body in charge of investigating and disciplining judges, following public outcry from activist groups that the commission hasn't been sufficiently harsh on errant judges and that its proceedings aren't sufficiently transparent.

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 eleven.

The proposition also changed the composition of the commission: three judges appointed by the 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.

The Supreme Court has the authority to review and overturn the commission's rulings, as in the recent case of Judge Nancy Ayers, where the high court dismissed the commission's advisory letter against her for keeping a guide dog she was training in her courtroom.

This will be the first time in its history that the commission has been audited.

Wagstaffe said that on the whole, the commission operates in the public eye.

"The CJP doesn't operate entirely in confidence. Many proceedings are open to the public and it publicly admonishes judges when appropriate. But some cases appropriately call for privacy," he said.

Aside from its usual examination of budget and spending, State Auditor Elaine Howle has also been asked to review the commission's rules, standards and procedures.

Wagstaffe said the commission has no problem with the auditor looking into its finances, but other aspects of the audit go too far.

"Many of the categories are attempting to look at the very core function of how a court process works and that would be unprecedented to allow that," he said. "This is a very, very broad-based audit."

The auditor proposes looking into the commission's rules on confidentiality and why certain proceedings are kept private, reviewing its process for investigating legal error, and examining the commission's standards for handling cases and when to contact complainants, witnesses and judges.

Howle's office also notes that the audit will take roughly 4,100 hours, with no set completion date, at a cost of roughly $492,000. The commission is also contesting the cost, saying it cannot afford to pay a nearly $500,000 bill with a yearly budget of $4.6 million.

Wagstaffe said the commission isn't using its petition to skirt the audit, but wants some clarification on what the auditor will be allowed to do.

"This isn't an agency that's looking for a free pass," he said. "We've gone to court to get some judicial guidance so this audit can go forward on things that are appropriate. We are hoping this will be a matter that is handled very quickly and efficiently."

Howle's office did not respond to a request for comment.

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