Observers weigh in on effects of chief justice’s proposed rule change

State judicial officers would be publicly named if they enter into agreements to resolve sexual harassment and discrimination claims, according to a rule change proposed this week by Chief Justice Tani G. Cantil-Sakauye.

But some observers are concerned about increased litigation, particularly if allegations are made public that turn out to be meritless.

"In 2018, we need to rebalance the protections within the rule to ensure that they do not undermine public trust and confidence in the judicial branch or access to information about how taxpayer funds are being spent," Cantil-Sakauye said in an emailed statement to the Daily Journal Wednesday.

The current Public Access to Administrative Records section of the California Rules of Court shields state courts from having to share information about sexual harassment payouts by judicial officers.

Amendments are required to reinforce judicial accountability and the public's right to know how the judiciary spends taxpayer money, according to Cantil-Sakauye. The chief justice asked the Judicial Council, the policymaking body of the California courts, to revise the procedures governing judicial administrative records in Rule 10-500 to clarify that the information should be made public.

"The current rule does not make it clear enough that these records should be disclosed," Cantil-Sakauye said. "Judicial independence relies in part on judicial accountability."

Justice Marsha G. Slough of the 4th District Court of Appeals will head the committee to work on the rule change and is joined by Sacramento County Superior Court Judge Stacy Boulware-Eurie, San Bernardino County Superior Court Judge Kyle S. Brodie, and attorneys Gretchen Nelson of Nelson & Fraenkel LLP and Fresno County attorney Rachel W. Hill.

Slough said the committee is convening for the first time Thursday. She hopes to have recommendations for revisions to submit to the Judicial Council by the next meeting in May.

"This is a natural progression of the #MeToo movement -- the request for information related to people in power who act inappropriately toward other people," Slough said.

The newly formed committee will determine what information has to be shared, but the mechanism for that disclosure is largely up to the courts, she added. "Even with a robust judicial ethics framework in California it is important that we be transparent with regard to claims involving judicial officers," Cantil-Sakauye said.

Slough said she can foresee potential negative consequences for a judge who has to run for re-election and was accused of sexual harassment, regardless of whether the claim had merit or not. There will be measures in the revision to prevent inappropriately exposing a judicial officer because of a meritless request, she added.

Gregory Dresser, executive director for the Commission on Judicial Performance, said, "In a contested election, such things can become issues" if the names of judicial officers accused of sexual harassment become available to the public.

The change may have the effect of costing the courts more money because judges accused of sexual harassment will want to fight the claims in court, according to James A. Murphy of Murphy Pearson Bradley & Feeney, who often represents judges in disciplinary proceedings.

"To have a rule that requires that every one of these cases to have sunshine on it is going to make it difficult to resolve the ones that don't have a lot of merit or may be able to settle for cost of defense," Murphy said. "No one's going to want to shine a light on it if it's not in their best interest."

Murphy said there is tremendous financial incentive for attorneys to represent judicial officers as the council often provides separate attorneys to each officer named in complaints due to potential conflicts of interest. Most of these cases in his experience are resolved before being litigated in court, which may soon change, he added.

The Judicial Council announced in March that California state courts had spent more than $500,000 over seven years to resolve sexual harassment claims. Three of the complaints were against judges, while two were against court employees. Slough said this may not reflect all of the money spent to settle sexual harassment claims as individual courts can resolve the disputes on their own without disclosing it to the council.

"I would expect that if there are cases out there that have been settled by trial courts, I would expect it to be a small number," Slough said. "This is why the chief is trying to accomplish this, because everyone has the right to know that answer."

The Judicial Council provides attorneys for judges and court employees accused of misconduct. Attorney-client privilege, court rules governing such information and potentially harming the prestige of the office do not allow for state courts to disclose details of individual cases, according to Murphy. "As a judicial officer, and more pointedly, as a female judicial officer, I was gratified to see the chief took steps to clarify the ambiguity regarding the rules," Slough said. "These are public funds and public officials and when a lawsuit is resolved on these types of issues, it should be public information."