Commission on Judicial Performance leader urges lawmakers to mandate court reporting

The head of the Commission on Judicial Performance urged state lawmakers Wednesday to pay for more court reporters while cautiously approaching any constitutional amendments to overhaul the oversight system, part of a response to an audit he said already is prompting major changes.

"There are lots and lots of proceedings in court that are not transcribed and they're not recorded. The failure to have a record of proceedings presents an access to justice issue that's very serious," said director-chief counsel Gregory Dresser, who spoke at a joint meeting of the state Senate and Assembly judicial committees with commission legal adviser Charlene M. Drummer.

Dresser referenced a comment from a lawmaker who said all proceedings are transcribed, which isn't true. He said mandating recordings or transcriptions of all proceedings "will make the investigations more easy, better and thorough."

Meanwhile, the commission is implementing all audit recommendations that don't require a constitutional amendment, including a new case management system, a process to review and approve investigative strategies, set deadlines for investigations, and periodically review closed investigations "to make sure investigations were done appropriately and thoroughly," Dresser said.

A constitutional amendment is a policy decision for the Legislature "and ultimately the voters to make," he said.

"All I want to say is I do think we have a good system now ... and if there is going to be a different structure, that that just be carefully thought through so we don't end up with a system that is worse," Dresser said.

"And more expensive," Drummer added.

The meeting followed an audit released in April titled, "Commission on Judicial Performance: Weaknesses in Its Oversight Have Created Opportunities for Judicial Misconduct to Persist." Major recommendations include no longer allowing special masters who are judges to oversee evidentiary hearings and separating investigations and discipline so that majority control is given to members of the public on the commission.

Such changes require amending the state Constitution, which needs approval from at least two-thirds of each legislative chamber, as well as voter approval. A constitutional amendment created the commission in 1960. It was last restructured in 1994 when voters approved a constitutional amendment aimed at increasing public input in judicial discipline.

The audit notes that public citizens on the commission don't hear evidence or observe witnesses, which gives the special masters who do "a significant amount of influence in CJP's disciplinary process."

Joined by State Auditor Elaine M. Howle, Senior Auditor Katie Cardenas said Monday the audit found "that the special masters tend to be more lenient when judging their peers" and their review process "falls short" of the 1994 amendment, Proposition 190.

The audit also said the commission repeatedly fails to detect ongoing signs of misconduct, including one judge who received eight complaints in five years about the same type of misconduct. Multiple complaints were ignored, and several investigations did not consider past probes. Cardenas said the pivotal complaint included "transcripts that were instrumental in proving the misconduct occurred."

State auditors want the Legislature to temporarily fund an investigations manager for the commission that could become a permanent position.

State Sen. Hannah-Beth Jackson, chair of the Senate Judiciary Committee, said she appreciates the audit's recognition of the "inherent unfairness of a unicameral system."

She said everyone has heard "some horrific stories" about judicial misconduct, but "most judges want to do a good job" and problems can be resolved "through the education process," but the commission isn't authorized to require training.

"I recall a judge I knew who suffered a severe blood sugar problems so if you happened to be in court at quarter to 12 with the judge, you were likely to have some kind of inappropriate behavior because his blood sugar was too low. Simple things like that that can be addressed," Jackson said.

She also emphasized the need to distinguish between judicial misconduct "and just decision-making that litigants don't like."

Jackson is a former Santa Barbara County deputy district attorney who later managed a law firm with offices in Santa Barbara and Ventura.

She and Assembly Judiciary Chairman Mark Stone called for the audit in 2016, citing the Daily Journal's coverage of the commission's admonishment of Ventura County Superior Court Judge Nancy L. Ayers for keeping a guide dog-in-training in her courtroom.

The lawmakers said the commission's treatment of Ayers demonstrated the need for an examination of whether its procedures "comply with the fundamental concepts of constitutional due process."

Dresser said he doesn't believe the current process violates due process because judges are notified of their charges and given sufficient opportunity to respond.

He commended the lawmakers' comments about judicial independence and compared it to oxygen: "You may not notice it, but you are sad when both are gone."

Other presenters included Paul A. Bacigalupo, president of the California Judges' Association, as well as a Los Angeles County Superior Court judge and commission special master. The four-hour meeting concluded with about an hour of public comment, mostly scathing assessments of family law judges based on specific decisions.