Litigation
Oct. 26, 2016
Judicial watchdog goes to court to challenge Legislature-ordered audit
The Commission on Judicial Performance has gone to court to challenge the scope of an audit ordered by the state Legislature.
Daily Journal Staff Writer
SAN FRANCISCO — The Commission on Judicial Performance has gone to court to challenge the scope of an audit ordered by the state Legislature.
Attorney James M. Wagstaffe filed a complaint on behalf of the CJP against State Auditor Elaine M. Howle in San Francisco late last week. Commission on Judicial Performance v. Howle, CPF515308 (S.F. Super. Ct., filed Oct. 20, 2016).
While acknowledging the auditor's right to look into finances of the agency charged with disciplining misbehavior by judges in California, the complaint questions her authority to get confidential records or scrutinize "core functions" of the agency.
"This is a textbook example of possible invasion of core judicial activities," said Wagstaffe, a partner with Kerr & Wagstaffe LLP in San Francisco, which has also represented the State Bar and courts on numerous occasions.
The writ petition seeks injunctive relief to block Howle from seeking confidential CJP records and auditing its "core functions."
The complaint also seeks to ensure the CJP does not bear any of "the nearly $500,000 cost of the audit," noting the CJP's annual budget is only $4.6 million.
The Joint Legislative Audit Committee (JLAC) unanimously approved the audit in response to a request from four legislators.
The Auditor's office provided JLAC with 19 issues it would seek to address. Wagstaffe said several of these would raise significant confidentiality and separation of powers concerns.
In particular, he pointed to sections calling on the audit to access the processes for "evaluating the credibility of evidence, witnesses, and statements" and "investigating legal error."
"If not Elaine Howle, then who?" asked Assemblyman Mark Stone, D-Scotts Valley, who cosigned the audit request. "There cannot be a state agency of any type that goes without oversight."
Stone, chairman of the Assembly Judiciary Committee, said a financial audit of the CJP would not answer key questions raised by the Brock Turner case, such as whether state judges apply their judicial discretion equally to different demographic groups.
Turner is the former Stanford University swimmer sentenced to six months in prison by Santa Clara County Superior Court Judge Aaron Persky for sexually assaulting an unconscious woman. The ruling sparked national outrage and an ongoing recall attempt against Persky.
The audit request, which did not mention the Turner case, listed 26 questions for the auditor to ask. Only three related directly the CJP's finances.
The remainder focused on "process considerations" such as what information the agency provides to judges who have complaints against them, how long it stores records about past complaints, and how often it contacted witnesses.
Joseph Sweeney, a longtime critic of the CJP who testified at as Assembly hearing in March, called the suit "a guise just to prevent any scrutiny" on how the CJP handles complaints against judges.
"If the CJP were to win this suit, they would be the only government agency that has zero accountability," Sweeney said.
"When it comes to our core functions, we are subject to the Supreme Court of California's authority," Wagstaffe countered.
The filing states that the CJP is "an independent body" within the California Constitution, and cites "CJP Rule 102," which guarantees that "all papers filed with and proceedings before the commission shall be confidential."
The state government code, meanwhile, gives the auditor "authority to examine and reproduce" records "of any agency of the state, whether created by the California Constitution or otherwise."
The auditor completed a critical report last year on the State Bar, taking on issues such as attorney discipline and "efforts to align its staffing with its mission."
According to the complaint, San Francisco is the proper venue under state Civil Code of Procedure because "this cause of action" arose there. The auditor is located in Sacramento County, which is the usual venue for suits against state entities.
CJP spokeswoman Victoria Henley declined to comment.
A spokeswoman for the auditor's office, Margarita Fernández, said they were still reviewing the complaint.
malcolm_maclachlan@dailyjournal.com
Malcolm Maclachlan
malcolm_maclachlan@dailyjournal.com
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