CJP, state auditor debate meaning of ‘confidential’ in dueling briefs

The fate of an audit of the Commission on Judicial Performance could come down to the meaning of a single word: confidential.

On Friday, attorneys for the state auditor filed their latest reply in the commission’s legal challenge to portions of an audit ordered by the Legislature last year. The brief follows San Francisco County Superior Court Judge Suzanne R. Bolanos’ demand last month for supplemental briefings.

In her order, Bolanos said that after months of arguing over whether the commission’s right to maintain confidentiality of judicial discipline records extends to withholding those documents from the auditor, “neither party … presented any argument or briefing regarding the meaning of the term ‘confidential’” in the California Constitution.

Last year, the Legislature ordered State Auditor Elaine Howle to audit the commission for the first time in its 57-year history. The agency then sued, claiming the state Constitution allows it to set its own confidentiality rules and that it could not be compelled to turn over discipline records.

“In this context, ‘confidential’ means absolutely confidential. … There is no balancing test to be applied,” wrote Michael von Loewenfeldt, a partner with Kerr & Wagstaffe LLP of San Francisco, in a Sept. 8 supplemental briefing for thecommission. Commission on Judicial Performance v. Howle, CPF515308 (S.F. Super. Ct., filed Oct. 20, 2016).

The commission brief noted the agency is exempt from the California Public Records Act and the fact that judges cannot demand a public hearing on discipline matters.

The brief then cited the state Constitution, which grants the agency the right to “make rules for the investigation of judges,” including “the confidentiality of complaints.” These are contained within the agency’s Rule 102, which sets out 16 exceptions.

“None of those exceptions authorize providing records to the state auditor,” von Loewenfeldt wrote. “By setting forth sixteen exceptions, Rule 102 clearly indicates that there are no other exceptions.”

In his reply on behalf of the auditor, Myron Moskovitz of the Moskovitz Appellate Team in Piedmont called this reasoning a tautology that “tells us nothing.”

Moskovitz said the existence of 16 exceptions to an “absolute” standard undermines the commission’s arguments. These allow the agency to release confidential files to law enforcement, any governor in the country, and the chief justice of the state Supreme Court, among others.

“It appears that CJP freely shares its files with other government officials, but wants this court to define ‘confidential’ in a way that allows CJP to keep its files away from the only government official assigned to question CJP’s performance,” Moskovitz wrote.

The auditor’s brief then notes that state law demands the office ensure the confidentiality of documents in recognition of the auditor’s far-reaching powers to demand information.

“The Legislature has already undertaken that balancing text. … The Legislature has decreed that every state agency (including CJP) must provide all its documents (including confidential documents) to the state auditor,” Moskovitz wrote.

The sides did agree on one thing: Bolanos’ suggestion of providing redacted files is a nonstarter. The commission brief maintained the auditor has no right to even redacted discipline files. It also claimed redacting the relevant files would be cost-prohibitive due to the amount of attorney time it would require.

Moskovitz, meanwhile, wrote, “Any alteration of CJP documents would compromise the integrity of the audit.”

The commission’s reply to the auditor’s brief is due Friday. Bolanos will then have 90 days to rule.