State auditor seeks to rebut CJP challenge to its authority

The attorney for State Auditor Elaine Howle is seeking to undercut a core legal argument used by attorneys for the Commission on Judicial Performance as the agency seeks to block portions of an audit ordered by the Legislature.

“The separation of powers doctrine does not apply to the commission, because the commission does not exercise core judicial powers,” wrote Myron Moskovitz in an opposition brief filed on Wednesday.

The contention by the legal director of the Moskovitz Appellate Team in Piedmont is the latest salvo filed by the auditor’s office as it seeks to perform the first audit in the CJP’s 57-year history.

The CJP filed the challenge last year in San Francisco County Superior Court. The agency is represented by the San Francisco-based Kerr & Wagstaffe LLP. Commission on Judicial Performance v. Howle, CPF515308 (S.F. Super. Ct., filed Oct. 20, 2016).

In his opening brief, partner James M. Wagstaffe said the CJP does not oppose an audit of areas like finances and workflow. But he said the current audit threatens the confidentiality of the CJP’s constitutionally-protected discipline process.

“Protection of those core functions is guarded by the separation of powers doctrine and is embodied in a constitutional provision, which states that one branch of state government may not exercise the powers belonging to another branch,” Wagstaffe wrote.

Moskovitz, however, responded in his brief that, “The commission does not belong to one of the three branches protected by the separation of powers doctrine: the legislative, executive and judicial branches. The commission claims that it is part of the judicial branch, but it is not.”

Instead, he said the CJP is a “quasi-judicial” entity, like the State Bar. The auditor’s office has evaluated the State Bar on numerous occasions, releasing its latest report on the agency last month.

Moskovitz also wrote that the auditor has never “breached the confidentiality rules of an agency” and “has no stake in the outcome” of the audit. Nor has a court “ever blocked the Legislature’s effort” to audit a state agency.

While the CJP may “fear what an audit might uncover,” Moskovitz argued, the process is long overdue.

“Every year, the Legislature appropriates millions of taxpayer dollars to fund the operations of the Commission on Judicial Performance,” Moskovitz wrote. “But neither the Legislature nor the public has any idea how well or how poorly this money is spent.”

Kerr & Wagstaffe partner Michael von Loewenfeldt said Moskovitz’s response misstates the positions taken by the CJP.

“There is basically no response to the fundamental question in this case, whether the Legislature can override the CJP’s confidentiality rules when the state Constitution grants the CJP, not the Legislature, the power to make those rules,” von Loewenfeldt said.

The Joint Legislative Audit Committee approved the audit last year in response to a formal written request from four legislators.

That letter specifically asked the auditor to look into numerous questions around the judicial discipline process, including standards used to evaluate evidence against a judge and how a decision is made to close a case.

The sides filed their briefs in preparation for an Aug. 4 hearing in front of San Francisco County Superior Court Judge Harold E. Kahn.

Several critics of the CJP will be in attendance, said Kathleen Russell, executive director of the Center for Judicial Excellence. The San Rafael-based nonprofit has been pushing for years for more transparency from the CJP.

“This whole lawsuit was a stalling tactic by the CJP, and it worked because here we are nearly a year after the audit was passed by consent out of JLAC and the audit hasn’t moved forward,” Russell said.