Judge blocks part of CJP audit

SAN FRANCISCO — The Commission on Judicial Performance won a resounding court victory in a case challenging an audit ordered by the Legislature.

On Tuesday, Superior Court Judge Suzanne R. Bolanos blocked the California State Auditor’s demand for judicial discipline records.

The attorney representing the Auditor vowed to appeal. Critics of the CJP said they were speaking with lawmakers about a possible legislative response.

“The State Auditor has no legal authority to review any document in the possession of the CJP made confidential by CJP Rule 102,” Bolanos wrote in Commission on Judicial Performance v. Howle, CPF515308 (S.F. Super. Ct., filed Oct. 20, 2016).

“The confidentiality of CJP complaints and investigations is well established, and we are pleased with the court’s correct analysis of these issues,” said Michael von Loewenfeldt, a partner with Kerr & Wagstaffe LLP, the San Francisco firm representing the CJP.

The Auditor will “definitely” appeal the decision, according to attorney Myron Moskovitz of the Moskovitz Appellate Team in Piedmont.

“How can the Legislature appropriate several millions dollars a year without any idea of what the commission is doing?” Moskovitz said. “They haven’t been audited since they were created in 1960. The public and the Legislature have the right to know if they are operating effectively and within the law.”

The Joint Legislative Audit Committee voted unanimously last year to order Auditor Elaine Howle to look into the CJP. The legislative committee asked Howle not just to audit the agency’s finances but also records that show how complaints against judges are dealt with and how often discipline is meted out.

Critics of the agency have been seeking such an audit for years. Many believe the legislative committee ordered the audit partially in response to the backlash against Santa Clara County Judge Aaron Persky after he sentenced a Stanford University swimmer to just six months for sexual assault.

Tuesday’s ruling came one year to the day after the CJP cleared Persky of any wrongdoing in that case.

The CJP claimed the portions of the audit seeking discipline records violated the CJP’s constitutional authority to set its own confidentiality policies. The commission’s Rule 102 contains exceptions relating to the governor, the Commission on Judicial Appointments and the State Bar, but none for the Auditor or Legislature.

Bolanos agreed with essentially all of the CJP’s major points. A key section of government code granting the Auditor “authority to examine and reproduce” a wide variety of state records violates the CJP’s constitutional authority, she wrote.

For this reason, she prohibited “the State Auditor and its agents from seeking any records” the CJP deems confidential. Bolanos added the “Auditor has no legal authority to charge the CJP for the cost of any audit.”

“California courts have rejected other attempts to breach the confidentiality of CJP records,” Bolanos wrote. In support, she cited several cases raised by the CJP’s attorneys, including Mosk v. Superior Court (1979) 25 Cal.3d 474, in which the California Supreme Court said that lower court rules allowing open hearings were overridden by constitutional provisions guaranteeing confidential investigations.

The CJP did not challenge a portion of the audit looking into its finances, but the Auditors office has declined to move forward on just that portion. The Auditor regularly looks into the finances of state judicial bodies. For instance, it released an audit of the Judicial Council’s procurement practices on Tuesday.

Moskovitz said his team expected they might lose at the superior court level, and that he expects to win on appeal.

“It’s not terribly surprising that a superior court judge that is overseen by this agency would be somewhat reluctant to rule against this agency,” Moskovitz said.

There are no records on the CJP’s website showing any disciplinary action against Bolanos. But Moskovitz added that because of the CJP’s secrecy, “you would never know” if complaints have been filed against a judge that did not result in discipline.

“What the CJP hasn’t bargaining for is the Legislature’s reaction to this,” said Kathleen Russell, the executive director of the Center for Judicial Excellence, a Marin-based group that has long pushed greater for greater transparency from the CJP. “We are working now with the Legislature to create some accountability for the judicial branch.”

Russell declined to say at this time what proposed legislation might look like. Critics are also looking at the possibility of a ballot measure to replace the CJP, she said.

Last year, voters in Georgia approved an initiative by a 25 point margin that abolished the state’s 44-year-old Judicial Qualifications Commission and replaced it with an entity reporting directly to the Legislature.

Calls to the Joint Legislative Audit Committee chair and vice chair were not returned. The Legislature returns from break on Jan. 3.