Even the State Auditor’s office doesn’t have the right to know about complaints about California judges. That’s the result of a recent decision by Superior Court Judge Suzanne Bolanos, who says a state commission in charge of investigating such complaints doesn’t have to turn over its records to State Auditor Elaine Howie. The Commission on Judicial Performance, in existence since 1960, is charged with investigating complaints against the state’s approximately 2,000 judges and disciplining them if necessary.
Its mandate is “to protect the public, enforce rigorous standards of judicial conduct and maintain public confidence in the integrity and independence of the judicial system.” However, critics contend the CJP is not only ineffective in its role as a judicial investigator but makes what little it does accomplish secret. Under the law, the CJP decides what information is and is not made available to the public – and that’s nearly everything. On rare occasions, the CJP does come forward and announce disciplinary actions against a member of the judiciary, but this only occurs in cases that have already received media attention, so the public expects something.
CJP vs. Howie
In August 2017, the legislature ordered an audit of the CJP, the first of its kind. Two months later, the CJP filed suit against Howie as State Auditor over the scope of the legislative audit on the commission’s procedures, rules, standards, and budget. According to the CJP, it wanted to protect both the privacy of witnesses who have filed complaints against judges, as well as the judges who were “privately admonished.”
It particularly found fault with the audit’s focus on CJP evaluation of witnesses and evidence, the outcomes of cases brought before it and their entire complaint review process. Bolano’s ruling will prevent Howie from evaluating CJP case outcomes over the past five years – the most recent outcomes decided by the CJP – and making inquiries into CJP standards, procedures, and case determination factors.
Howie’s attorney, Myron Moskovitz, told Courthouse News Service that the ruling “undermines” the point of having a CJP in the first place. He said his client cannot conduct a proper audit without receiving the confidential files, so for all intents and purposes, the audit has been stopped. Moskovitz said that Howe intends to appeal.
He notes the legislature has determined that all state agencies should show the State Auditor their confidential files, and he believes the judge’s finding of the unconstitutionality of those statutes is simply wrong. Moskovitz added that the reason for the CJP’s existence is to “ensure respect for the judiciary,” but that respect isn’t possible unless there is respect for the CJP itself, which isn’t possible without an audit.
While the public is still in the dark against complaints made against judges, some judges have responded that CJP has issued tough disciplinary actions for minor offenses. In a case where the CJP did make its findings public, it admonished Los Angeles Superior Court Judge Edmund Clarke Jr. for impatience with a juror with limited English and criticism of a potential juror who said she had “severe anxiety” about serving on a jury.
CJP chastised Ventura Superior Court Judge Nancy Ayers for allowing a guide dog she was training to stay in her courtroom, but the California Supreme Court overturned the CJP’s advisory letter on the matter.
Critics say judges guilty of misconduct are receiving excessive leniency from the CJP. Others accuse the CJP of acting like a “smoke screen” to appease those wronged by incompetent or corrupt judges, while actually doing little about complaints.
A Dismal Record
In its 2015 annual report, the CJP revealed that only four judges out of 1,231 complaints were publicly disciplined, while another 37 complaints resulted in a private admonishment or letter, and none of these 37 judges were publicly identified. The CJP provided no information on the 1,190 cases it dismissed, of which 90 percent did not even merit an investigation. If this isn’t an agency that deserves an audit, it’s hard to know why.
Similar commissions in other states have far higher discipline rates. For example, Texas investigated three times more complaints than California, removing six times as many judges and publicly disciplined three times as many. Other states’ CJPs are far more transparent. California has the largest court system in the nation, and it deserves better.