Judge raises possible solutions to CJP’s dispute with auditor

A San Francisco County judge has opened the door to the Commission on Judicial Performance providing redacted judicial discipline records to State Auditor Elaine Howle.

But the auditor’s attorney has pledged to oppose redaction as a solution to the legal dispute between the agencies.

Superior Court Judge Suzanne R. Bolanos issued an order late Thursday seeking supplemental briefings in the CJP’s challenge to aspects of an audit ordered last year by the state Legislature. Commission on Judicial Performance v. Howle, CPF515308 (S.F. Super. Ct., filed Oct. 20, 2016).

Bolanos wrote that neither side presented arguments on the meaning of the word “confidential” as it pertains to the status of the CJP in the state constitution. She then suggested redaction as a potential method by which the confidentiality of discipline records could be maintained.

“Can the documents be released in a redacted or ‘de-identified’ form, that is, without the judges’ names or other information that could be used to identify individual judges so as to preserve the confidentiality of investigations?” she asked.

“No, it’s not going to be acceptable,” said Myron Moskovitz of the Moskovitz Appellate Team in Piedmont. “It is essential to the integrity of the audit that files not be tampered with in any way.”

“We’re reviewing the judge’s questions and have no comment at this time,” said Michael von Loewenfeldt, a partner with Kerr & Wagstaffe LLP in San Francisco, which is representing the CJP.

The order followed an Aug. 17 hearing at which von Loewenfeldt and Moskovitz argued over how much authority the auditor has over the agency that disciplines — or decides not to discipline — judges in California. The CJP has never been audited in its 57-year history.

The California Constitution protects the CJP’s right to determine its own confidentiality practices, von Loewenfeldt claimed. Moskovitz countered the agency is subject to the same standard auditing practices as any other state entity, and said there is no precedent that could support the idea the auditor should “take an agency’s word for it.”

“Does the designation of documents as ‘confidential’ mean that the documents may never be produced to the Auditor, or is there a balancing test that must be undertaken before deciding whether some documents may be released?” Bolanos asked in her order.

She went on to cite Sander v. State Bar of California (2013) 58 Cal. 4th 300 as a relevant example of such a “balancing test.” The state Supreme Court ruled in that case the State Bar should release data on race, bar exam scores, and other factors if it could do so in a way that protected the confidentiality of individual exam takers.

“She did express concern about keeping the judges’ names secret,” Moskovitz said of the hearing.

But he added that the auditor’s office regularly keeps officials’ names confidential from the press and the public while conducting audits.

Joe Sweeney of Court Reform LLC, a group critical of the CJP, applauded Bolanos’ handling of the case. But he added that it was time for voters and Legislature to assert their authority over the agency in a more explicit way.

“We need to do the same thing Georgia did on its 2016 ballot: abolish the CJP and replace it with a new one [entity] under control of the Legislature,” Sweeney said.