State Auditor Can't Pry Open Judicial Commission's Records: SF Judge

Cover sheet in Commission on Judicial Performance v. Howle. Credit: Mike Scarcella

A state auditor has no authority to access confidential records of California’s judicial conduct commission, a San Francisco judge ruled Tuesday.

San Francisco Superior Court Judge Suzanne Bolanos held that California State Auditor Elaine Howle’s request for confidential records from the state’s Commission on Judicial Performance ran afoul of CJP’s internal rules. She said the law authorizing the state auditor to review an agency’s confidential records was unconstitutional as applied to the CJP. Bolanos also held that the audit threatened to violate the separation of powers laid out in the state’s constitution.

Judge Suzanne Bolanos. Credit: Shelley Eades

“The CJP’s constitutional right to control the confidentiality of its documents is consistent with the law in other states,” Bolanos wrote. “Courts in other states have also held that the constitutional or statutory authority to make their records confidential preserves the agencies’ independent function and cannot be overridden by other branches of government.”

Margarita Fernández, a spokeswoman for Howle, wasn’t immediately available for comment.

The California Legislature authorized the first-ever audit of the judicial commission, the independent agency tasked with overseeing judicial disciplinary proceedings, in August 2016, after a lobbying effort from judges and family law litigants.

Judges claimed the CJP’s disciplinary process is opaque and fails to afford them due process. Family law practitioners contend the agency doesn’t do enough to discipline bad judges. The CJP, however, sued to limit the scope of the audit in October 2016 claiming that it threatened the confidentiality of its investigations.

Tuesday’s order also prohibits the state auditor from “reweighing evidence or second-guessing the propriety of CJP’s determinations” related to certain audit topics, including the CJP’s process for evaluating witnesses and their statements, and assessing the outcomes of CJP cases that have resulted in private discipline.

James Wagstaffe of Kerr & Wagstaffe, who is representing the CJP, did not immediately return messages seeking comment Wednesday.

The ruling in Commission on Judicial Performance v. Howle is posted below: