State auditor wants to take CJP lawsuit straight to the state high court

Attorneys for State Auditor Elaine Howle have filed a request to take their appeal against the Commission on Judicial Performance directly to the state Supreme Court.

The commission has been fighting Howle's attempts to conduct an audit ordered by the Legislature. The commission claims the auditor has no right to view materials it deems confidential, including information related to judicial discipline.

In December, San Francisco County Superior Court Judge Suzanne R. Bolanos ruled the agency has the discretion to withhold discipline records it deems confidential. Commission on Judicial Performance v. Howle, A153547 (Cal. App. 4th, filed Jan. 8, 2018).

Howle's attorney, Myron Moskovitz with the Moskovitz Appellate Team in Piedmont, filed an appeal with the 1st District Court of Appeal. But he said he filed a petition last week to transfer the case to the Supreme Court for two reasons: timing and inevitability.

"The petition asks them to take the case and decide by Sept. 1 so the Legislature can get the information from the audit in time for the 2019 budget," Moskovitz said. "If we go through the Court of Appeal, it's a virtual certainty whichever side loses is going to go to the Supreme Court. Might as well do it now."

Michael von Loewenfeldt, who represents the commission as a partner with Kerr & Wagstaffe LLP, said his side is evaluating how to respond. They have 20 days from the time the petition was filed to raise any objections to the court. He said they also have until March 28 to file a response brief with the 1st District.

He took issue with how Moskovitz has portrayed the case. The agency has not opposed an audit of its finances and performance metrics, von Loewenfeldt said, only the portions dealing with judicial discipline they believe are the agency's discretion.

"They continue to state the CJP is refusing the audit," von Loewenfeldt said. "The commission has no interest in delaying this matter. We are, in fact, willing to go forward with large portions of the audit, as we have always been."

Moskovitz, meanwhile, has argued throughout the case that it is the auditor's policy to not pursue a partial audit because that would compromise the result. He said the case is about the rights of the Legislature and the public to know how their tax dollars are being spent.

The Joint Legislative Audit Committee ordered the first audit of the now 58-year-old agency in August 2016. This was shortly after Santa Clara County Superior Court Judge Aaron Persky drew fire -- and eventually a recall campaign -- for sentencing a former Stanford University swimmer to six months in jail for felony sexual assault.

Moskovitz highlights the Legislature's oversight role in his high court brief. He quotes a declaration from Howle stating lawmakers need to audit information "in order to make proper decisions regarding appropriations to CJP, the effect on the overall state budget, and possible statutory and constitutional changes regarding CJP."

He also said that there are no factual disagreements between the sides, just a dispute over each agency's jurisdiction under the law. The commission's attorneys have repeatedly argued that the voter initiative that created the it as a Constitution-mandated entity give it the right to set its own standards of confidentiality.

Much of the argument has centered on CJP Rule 102. First adopted by the agency in 1996, the four-page rule lays out its confidentiality policies and limited exceptions.

The auditor's team has countered that the Legislature and auditor have exercised authority over many similarly situated agencies and have extensive policies for protecting confidentiality.

Moskovitz's team's 73-page opening brief says that the word "confidentiality" was never defined in the constitutional language establishing the agency.

"As applied to the present case, 'confidentiality' must be construed in a way ... to enhance public confidence in our state's judiciary," he wrote.