Attorneys for CJP, state auditor argue limits on inquiry

SAN FRANCISCO — Attorneys for the Commission on Judicial Performance and the state auditor debated Thursday whether the Constitution protects the judicial watchdog agency from an intrusive audit before a judge who will decide the matter.

The attorney for the CJP, Michael von Loewenfeldt of Kerr & Wagstaffe LLP, argued that the California Constitution vests the power to decide the confidentiality of its documents in the CJP alone.

“The Commission’s rights to determine confidentiality does flow directly from the Constitution,” he said. “The Legislature cannot unwind the Commission’s confidentiality rule through statute.”

San Francisco County Superior Court Judge Suzanne R. Bolanos listened as von Loewenfeldt argued that the CJP’s role in deciding what to do in particular cases and investigations is its core function. Therefore, he argued, that function cannot be invaded by the Legislature or the auditor under separation of powers doctrine.

The CJP, he added, has no objection to providing internal financial records and statistical data about confidential cases. However, he said, releasing their confidential documents is up to the CJP, not the Legislature under a CJP rule. Commission on Judicial Performance v. Howle, CPF-16-515308 (S.F. Super. Ct., filed Oct. 20, 2016).

After von Loewenfeldt spoke, Bolanos asked the state auditor’s attorney, Myron Moskovitz of Moskovitz Appellate Team, why the auditor needs to review the CJP’s confidential files.

Moskovitz said it’s not enough to simply look at the statistics and data the CJP is willing to provide. “How do we know the statistics are true, unless you [review] the underlying documents? This is standard auditing practice...”

“You don’t take an agency’s word for it, you don’t take a business’s word for it,” he said. “They say, ‘Oh, we decided so many cases over a certain period of time.’ All right, maybe you did, but we’ve got to look at the documents to see if it’s true. That’s what an audit is. … It’s been 57 years, they’ve never been audited.”

Moskovitz acknowledged that most agencies don’t like to be audited, but argued audits can reveal errors by government agencies.

Moskovitz added that the State Auditor Elaine M. Howle has no interest in attempting to second-guess the work of the CJP and said she just wants to know if the CJP is following their own processes. “We have a system of checks and balances, as well as separation of powers,” he said.

Bolanos asked Moskovitz if the CJP’s confidential records could be subject to the Public Records Act once audited by the state. He responded the state auditor is very careful, and has no interest in publishing or announcing details about the CJP’s confidential files.

“The hierarchy of institutions in our democracy puts [the] Legislature at the top,” Moskovitz said. “These are the peoples’ representatives. They speak for the people. But they can’t speak intelligently unless they’ve got some eyes and ears out there to tell them what’s going on.”

Finally, Bolanos asked von Loewenfeldt about CJP’s concerns over an audit of their confidential files.

“That’s the … rabbit hole that the auditor keeps dragging you down, of policy matters,” von Loewenfeldt said. “The Legislature’s not on top of our system. The Constitution is on top of our system, and the Constitution says that the commission makes this decision.”

Bolanos took the case under submission.