Hotline among steps taken to handle complaints against state’s justices

The state Supreme Court and courts of appeal started instituting new protocols for the reporting and handling of misbehavior complaints, specifically against justices, after an investigation began into claims of sexual harassment by Justice Jeffrey Johnson of the 2nd District Court of Appeal.

The Judicial Council set up a hotline and a process for reporting harassment if a victim does not want to report to a judge or other supervisor, said Merrill Balassone, a public affairs officer for the council.

"Within the last year, the Supreme Court and Courts of Appeal have created updated policies on the prevention of discrimination, harassment, retaliation, and inappropriate workplace conduct based on a protected classification," she said in an email.

"These policies provide a new mechanism for employees to lodge complaints about justices as an alternative to making a harassment complaint directly to human resources, or a complaint to a supervisor, manager, clerk/executive officer presiding justice or administrative presiding justice," the email read.

Several witnesses during the 17-day hearing into allegations against Johnson stated they were afraid to report his behavior because they might lose their jobs or suffer other effects on their careers. Johnson testified many of the accusations against him by 17 women were made up, misinterpreted or misremembered after many years or occurred under different societal norms than exist today. Final arguments are set for Oct. 8 in San Diego.

2nd District Justice Elwood Lui testified during the hearing that when he was told of the complaints, he talked to Johnson about them but did not reach out to any possible witnesses or victims, reporting only what was brought to him. He said he later contacted the Judicial Council, which began an investigation.

Asked to comment on the efficacy of Lui's handling of the initial investigation, Balassone said, "We can't comment because of pending litigation." Johnson and one of his accusers sued the court over Lui's mass release of an email detailing the allegation.

Jonathan A. Weinman, a partner at Broslavsky & Weinman LLP in Manhattan Beach, said the investigation, as it was described by Lui, was mishandled. If witnesses are identified, Weinman said, those individuals should have been contacted by Lui or a neutral third party -- usually outside counsel.

Regarding Lui's decision to tell Johnson about the accusations and investigation, Weinman commented, "Informing someone in advance," about an investigation against them "raises a potential of a specter of impropriety." The attorney cited Mendoza v. Western Medical Center Santa Ana, G047394 (Cal. Ct. App. filed Jan. 14, 2014), as case law directly that backed up his assertion.

Court staff observing an investigation being handled improperly "has a potential chilling effect" on victims coming forward, Weinman added, noting people might not come forward for fear their abuser might be made aware of their accusation and retaliate against them.

Aside from the sexual harassment allegations, several justices testified that many of them, particularly in Division 1 where Johnson sits, were unable to work together, so much so that Justice Victoria Chaney described the environment as a "war."

While Chaney, Justice Frances Rothschild and others offered vignettes and clues that all was not well in their court, there was little insight during the hearing into how this dysfunction manifested itself and what caused it in the first place.

Attempts to improve the relationships among justices, including a group session with a psychologist, were not fruitful.

"I saw no purpose to them, but I suppose it was to help us get along well," Rothschild testified. Evidence in the hearing included the account of Johnson advising an attorney appearing before a panel that he didn't need to pay attention to Rothschild, the division's presiding justice.

Maintaining a fragile status quo was important enough to Chaney that she said she refused to report years of abuse from Johnson because she believed him to be a steady hand on the court. "It was not functional before Justice Johnson and I got there," Chaney testified.

However, attorneys who have worked at the court, and Danny Potter, the current chief clerk, indicated in interviews they weren't aware of dysfunction among the justices and believed it did not affect how they did their jobs. Several attorneys spoke about the cloistered nature of divisions within the court, noting it was difficult to know what was happening in a division if one did not work there.

"None of that was ever brought to my attention," said Potter, who worked for the court for many years before his promotion.

Potter said he never saw a "war" or anything like it manifest in the 2nd District, adding he had no idea what the justices might have been referring to in their testimony.

"I don't always get along with my coworkers, but that doesn't mean there isn't still work that gets done," Potter said.

Janet Tongsuthi, a research attorney who works in Division 3, shared similar sentiments to Potter's but added she didn't believe the courts' existing efforts to communicate a clear policy for the correct way to handle sexual harassment allegations were effective.

"Overall I love being here; I think it's a fantastic place to work," Tongsuthi said. "Clearly there's been a problem in that we've had no process for people who've been harassed. ... It was a failing in our system."

Regarding the court administration's response to the allegations, Tongsuthi said she didn't see that an understandable path to reporting impropriety had been put in place. She said while the working group and reporting hotline were works in progress, she'd like to see stronger protections.

"I don't want to wait until it happens to me to know what my rights are, who I can go to. That's why it's important," Tongsuthi said.