SFGate.com
August 17, 2017
By Cynthia Dizikes
Attorneys Michael von Loewenfeldt (left) for the Commission on Judicial Performance and Myron Moskovitz for the state auditor appear in court.
An unprecedented legal standoff between the state auditor and the agency that disciplines unethical judges in California came to a head Thursday as lawyers for both sides delivered spirited arguments in a case that has pitted the public agencies against each other for nearly a year.
At issue is whether the San Francisco-based Commission on Judicial Performance will have to release thousands of confidential judicial complaints and investigations as part of a first-ever audit of the 57-year-old agency.
“It’s not about the CJP being immune from an audit,” said Michael von Loewenfeldt, a lawyer representing the commission. “The auditor has no right to see these documents under the commission’s rule.”
The office of State Auditor Elaine Howle, however, has refused to conduct the review without access to all the records it argues are critical to evaluating the commission’s performance.
“No audit would do that,” said Myron Moskovitz, a lawyer representing the auditor’s office, after the hearing. “That’s how you end up with Enron.”
San Francisco Superior Court Judge Suzanne Ramos Bolanos took the matter under consideration after asking a series of pointed questions about the commission’s stated authority to keep records from the auditor, despite other agencies’ regularly sharing sensitive information, and the auditor’s stated inability to proceed without them.
A ruling is due within 90 days.
The unusual dispute stems from August 2016, when a state legislative committee approved an audit of the 11-member commission, which was established in 1960 to investigate misconduct among the state’s roughly 2,000 judges.
At the time, some judges had complained that the commission had penalized jurists too heavily for minor missteps. Court reform advocates, meanwhile, had argued that the agency’s lack of transparency had led to leniency for bad judges at the expense of the public.
“The CJP was created to protect the public, and they are not protecting the public,” said lawyer Barbara Kauffman, who attended the hearing Thursday along with dozens of other advocates who watched the proceedings and marched outside the courthouse.
Kauffman said she waited nearly three years after filing a complaint with the commission to hear that it would not be pursuing the matter.
Although the small but powerful agency can publicly discipline judges, including removing them from the bench, the state Constitution allows the commissioners to carry out the vast majority of their investigations and disciplinary actions in secret.
The commission releases a summary of a complaint and the judge’s reply in only a small fraction of cases that result in public disciplinary action. In other disciplinary cases, when the commission finds the misbehavior to be relatively minor, it withholds the documents and issues a private reprimand. Complainants are given limited information on the progress and conclusion of investigations that do not result in public proceedings.
The commission receives roughly 1,200 new complaints a year, or about 11,000 complaints from 2006 through 2015, according to a July court filing submitted by the auditor’s office. In that time, the auditor noted, the commission instituted only 19 public proceedings.
“Thus, in response to 99.4% of complaints, the Commission made every decision at every junction secretly — free from public scrutiny,” according to the auditor’s filing.
The commission has maintained that private reprimands serve important purposes — educating the judge, deterring future misconduct and justifying increased punishment for further violations. The commission also has argued that overall confidentiality protects complainants, witnesses and judges who may have been unfairly accused.
In addition to a review of financial and staffing issues, the auditor has sought to examine the commission’s policies and practices for handling and resolving judicial complaints by reviewing those confidential records.
But the commission has argued that the state Constitution grants it the sole authority to keep those records confidential and from the auditor.
“The Legislature is not on top of our system; the Constitution is on top of our system,” von Loewenfeldt said. “The Constitution gave the power to the commission; it didn’t give it to the Legislature.”
The auditor’s office has said it would keep the records confidential, as it does other records like tax and health documents.
Withholding those records “would essentially blind the Legislature” to how the agency is spending its legislatively approved $4.6 million annual budget, Moskovitz said.
“Are the Commission’s procedures structured to allow incompetent or biased judges to continue deciding civil and criminal cases? Or are they structured to lead to discipline that is too harsh on judges, arbitrarily interfering with their judicial independence? So far, the answers are a mystery,” the auditor’s court filings state. “No one enjoys being audited. But this is one of the costs of participating in a democracy.”
http://www.sfgate.com/bayarea/article/Showdown-over-state-auditor-s-access-to-records-11882558.php
