Commission on Judicial Performance lawyers challenge state auditor’s authority

Lawyers for the Commission on Judicial Performance have filed an initial brief in a case challenging the state auditor’s authority over the agency.

The brief by lawyers with Kerr & Wagstaffe LLP, expands on arguments made when the CJP first sued to block access to judicial discipline records. Commission on Judicial Performance v. Howle, CPF515308 (S.F. Super. Ct., filed Oct. 20, 2016).

The brief, filed Thursdday, states the CJP is willing to comply with audit requests on 15 of the 18 topics sought by Auditor Elaine Howle relating to the agency’s finances, workflow and similar issues.

However, it claims that “three of the 18 topics impermissibly interfere with the CJP’s core constitutional functions.” By seeking records relating to judicial discipline, the brief argues, the audit threatens the “iron clad confidentiality … recognized as essential to the CJP’s function.”

These records could then be released to the public through the California Public Records Act, the brief alleges. This could would lead judges to suffer retaliation because of “unwarranted complaints by disgruntled litigants,” the CJP brief said.

It goes on to argue the demand violates the California Constitution, noting that the CJP is a “constitutionally created body,” while the auditor’s office was created by legislation. It cites cases in Illinois, Kentucky and Missouri in which courts rejected audits of co-equal branches of government on separation of powers grounds.

The brief also notes that the auditor’s office has declined to begin working on the portions of the audit the CJP does not oppose. A spokesperson for the auditor’s office said it was standard practice to not begin an audit until they had full access to all files requested.

The lead attorney defending the auditor, Myron Moskovitz of the Moskovitz Appellate Team in Piedmont, said he was confident the auditor would prevail.

“They’re wrong on the law, but they are also wrong on the facts,” Moskovitz said. “They’re afraid of something that has never happened and is not going to happen, that the auditor will release their confidential files to the public.”

He said the auditor is legally barred from releasing the confidential files. He also dismissed the constitutional arguments.

“The state auditor audits many entities that are set up by the state Constitution, starting with the Supreme Court,” Moskovitz said. “I think a lot of the problem stems from the fact that the commission has never been audited.”

The sides will appear at an Aug. 4 hearing in front of San Francisco County Superior Court Judge Harold E. Kahn.

The state’s Joint Legislative Audit Committee approved the audit last year. The audit had long been sought by critics of the CJP, who claim the agency lacks transparency and fails to discipline many judges engaged in misconduct.

“There’s a difference between ‘interfering’ and ‘evaluating,’” said Joseph Sweeney of Court Reform LLC, a group that has been critical of the CJP. “The public is entitled to an evaluation of any government agency.”

The demand appeared to gain new momentum in June 2016, when Santa Clara County Superior Court Judge Aaron Persky sentenced Brock Turner to six months for sexual assault.

In December, CJP director Victoria B. Henley released a statement saying that despite “thousands of complaints and petitions … there is not clear and convincing evidence of bias, abuse of authority or other basis to conclude that Judge Persky engaged in judicial misconduct warranting discipline.”

The official audit request did not mention Persky, but a leaked early draft of the request did discuss the case.

In October, Assembly Judiciary Chair Mark Stone, D-Scotts Valley, told The Daily Journal that a limited audit of the CJP would fail to answer questions raised by the Turner case, such as whether a judge treated different demographic groups equally. Stone was one of four legislators who requested the audit.

On June 26, backers of a recall attempt against Persky announced they had filed a notice of intent with the Santa Clara County Registrar of Voters to begin gathering signatures. Persky filed a response Friday.

Attorneys at Kerr & Wagstaffe did not reply to calls and emails seeking comment.