Complaints on judges ordered to remain secret
The agency that disciplines unethical judges in California does not have to release thousands of confidential judicial complaints and investigations sought by the state auditor, a San Francisco Superior Court judge has ruled.
Judge Suzanne Ramos Bolanos said in her ruling this week that the state Constitution gives the San Francisco-based Commission on Judicial Performance the power to shield certain records, effectively trumping the auditor’s legislative authority to review government agencies.
Regardless of the “merit or popularity” of the auditor’s arguments to view such records, Bolanos wrote, voters made clear in a 1994 proposition that amended the state constitution that only proceedings involving formal charges against judges would be public.
“That is where the voters drew the line,” Bolanos wrote. “They maintained the absolute confi-
dentiality for other proceedings and documents.”
State Auditor Elaine Howle is expected to appeal the ruling.
The case stems from an unprecedented standoff between the commission and the auditor’s office after a state legislative committee approved a first-ever audit of the 11-member commission in August 2016. The commission was established in 1960 to investigate misconduct charges involving the state’s roughly 2,000 judges.
Although the small but powerful agency can publicly discipline judges, including removing them from the bench, the state Constitution allows commissioners to carry out the vast majority of their investigations and disciplinary actions in secret.
The commission releases a summary of a complaint and the judge’s reply in only the small fraction of cases that result in public disciplinary action. In other disciplinary cases, when the commission finds the misbehavior to be relatively minor, it withholds the documents and issues a private reprimand. Complainants are given limited information on the progress and conclusion of investigations that do not result in public proceedings.
Advocates for more public access have argued that the agency’s lack of transparency has led to leniency for bad judges at the expense of the public. Some judges, meanwhile, have complained that the commission has penalized jurists too heavily for minor missteps.
Joe Sweeney, whose advocacy group Court Reform LLC pressed the state Legislature last year to order an audit of the commission, said Wednesday that he was encouraged that the ruling was headed for appeal, but concerned about the continued delay.
“It is crazy that this judicial agency that has complaints about public officials that preside over our public court system isn’t subject to any scrutiny,” said Sweeney, whose complaint against a Contra Costa judge prompted a rare public proceeding this fall. “The commission is funded by taxpayer dollars, and we have a right to know whether they are doing their job.”
State Sen. Hannah-Beth Jackson (D-Santa Barbara), who as chair of the Senate Judiciary Committee helped initiate the audit, echoed those sentiments.
“Despite today’s decision, I continue to believe that no state agency, funded by taxpayer dollars, is above the law, nor above its fundamental responsibility to be accountable and transparent to the public,” Jackson said in a statement.
The commission operated on a $4.5 million budget last year. It receives roughly 1,200 complaints a year, and saw about
11,000 complaints from 2006 through 2015, according to a July court filing by the auditor’s office. In that time, the auditor noted, the commission instituted only 19 public proceedings.
“Thus, in response to 99.4% of complaints, the Commission made every decision at every junction secretly — free from public scrutiny,” the auditor’s filing said.
The commission has emphasized that the main reason only a small fraction of its cases result in discipline is that many complaints come from those who simply disagree with a judge’s decision. The commission has further maintained that private reprimands serve important purposes — educating the judge, deterring future misconduct and justifying increased punishment for further violations. It also has argued that overall confidentiality protects complainants, witnesses and judges who may have been unfairly accused.
In addition to a review of financial and staffing issues, the auditor sought to examine the commission’s policies and practices for handling and resolving judicial complaints by reviewing those confidential records. Although the auditor’s office said it would keep those records confidential, as it does with other sensitive records like tax and health documents, the commission successfully argued that the state Constitution grants it the authority to keep those records secret.
Michael von Loewenfeldt, a lawyer representing the commission, lauded the judge’s decision on Wednesday, pointing out that the commission has offered to turn over financial records and staffing and case backlog information as part of the audit.
“If they want to know how money is being spent and who is being hired and what the backlog is, they can,” von Loewenfeldt said. “Their ‘parade of horribles’ argument that if we can’t see everything we want, we can’t do anything, is not accurate.”
The auditor’s office has refused to conduct the review without access to all the records it argues are critical to evaluating the commission’s performance. Myron Moskovitz, a lawyer representing the auditor, said Wednesday he plans to appeal the decision.
“How can you expect the Legislature and the people to give the commission several million dollars a year without any idea if they are operating effectively?” Moskovitz said. “This isn’t only about financial matters; it is about whether they are doing their job properly, and you can’t tell that unless you look at their confidential files.”