Judge in CJP-state auditor suit to recuse himself

The judge assigned to hear a lawsuit by the Commission on Judicial Performance against California State Auditor Elaine Howle will recuse himself, according to a San Francisco County Superior Court spokesperson.

No reason was identified for Judge Harold E. Kahn’s decision. But Kahn’s brother, Crowell & Moring LLP senior counsel Michael A. Kahn, was a member of the CJP from 1999 to 2007. According to the Crowell website, Kahn was named for a term as vice chair in 1999 and as chair in 2000.

Michael von Loewenfeldt, a partner with Kerr & Wagstaffe LLP in San Francisco, who is representing the CJP, said he was not surprised by the decision.

“I’m aware he has done that in prior CJP cases,” he said.

Kahn was to hear the case as a law & motion judge. The court spokesperson said Kahn’s decision will be explained in a tentative ruling due to come out next week. He has no record of discipline by the CJP.

The move comes as the parties were preparing for an Aug. 4 hearing that was expected to be packed with critics of the agency that disciplines judges in California. The hearing will be moved to Aug. 14, with Superior Court Judge Stephen M. Murphy presiding. Commission on Judicial Performance v. Howle, CPF515308 (S.F. Super. Ct., filed Oct. 20, 2016).

The change follows a week of legal wrangling over the CJP’s attempt to block a portion of an audit ordered last year by the state Legislature. The agency has agreed to hand over information related to items such as finances and workflow.

But it claims it is under no obligation to provide records related to its methods of investigating and disciplining judges, or to specific cases.

On Tuesday, Judicial Watch Inc. filed an amicus brief supporting the auditor’s right to confidential records. The Washington, D.C.-based conservative group has sometimes issued statements critical of the CJP’s discipline record.

“There were any number of things that brought this to our attention and made it seem worthwhile for us to weigh in on,” said Paul Orfanedes, director of litigation with Judicial Watch.

Like many people, Orfanedes said, his group followed the case of a now-former Stanford University swimmer sentenced to six months for sexual assault.

Despite numerous complaints, the CJP declined to discipline Santa Clara Superior Court Judge Aaron Persky over that decision. The judge’s name showed up in an early draft of the legislative request to audit the CJP, though it was dropped from the official version.

Orfanedes said his organization also received numerous requests from CJP critics in California to get involved in the agency’s case against the auditor. He noted that Judicial Watch maintains an office in San Marino and has filed numerous past complaints with the CJP over judges.

The brief was filed by Robert Patrick Sticht, a Los Angeles-based attorney who has taken on several past cases for Judicial Watch.

“In Judicial Watch’s experience, CJP’s disciplinary process is opaque with virtually no information publicly available about how the CJP handles complaints,” Sticht wrote.

The brief also claimed the CJP was basing its confidentiality rights on an “overly-broad” interpretation of its own regulations. “In essence, the CJP asks this court to intervene and hold that when state law conflicts with its internal policy, state law must give way.”

Von Loewenfeldt responded, “We are not arguing that any state agency regulation overrides state law.”

Instead, he said their argument is based on the California Constitution. This includes a provision stating “the commission may provide for the confidentiality of complaints to and investigations by the commission.”

The attorney representing the auditor said he welcomed the amicus brief.

Myron Moskovitz of the Moskovitz Appellate Team in Piedmont praised the brief’s emphasis on the public’s right to know. He also noted arguments it made related to audits of the federal courts conducted in 1990 and 2006, in which the right for oversight of judicial discipline was upheld.

The sides have also been fighting over what evidence will be allowed in the now-delayed hearing.

Wagstaffe & Kerr filed an objection to several lines of argument raised by Howle in her written declaration. They argued sections of the California Evidence Code limit testimony by witnesses who are not judicial officers or “testifying as an expert,” as well as “testimony in the form of an opinion.”

Moskovitz said his team would probably file their reply on Friday.

“She is the head of the agency and has many years of experience applying these laws,” he said. “Her interpretation and application is relevant and admissible.”