Tani Cantil-Sakauye, Chief Justice of California. Photo: Diego M. Radzinschi / ALM

Leaders of every California court must adopt updated anti-harassment policies that detail how courthouse employees can file complaints, including those accusing presiding judges and top court executives of wrongdoing, under a new rule of court enacted by the Judicial Council Friday.

The new rule will require all 58 trial courts and seven appellate courts to establish by June 30 policies "prohibiting harassment, discrimination, retaliation, and inappropriate workplace conduct." The courts must also provide "multiple avenues" for submitting complaints and offer examples of banned behavior.

Rule 10.351 "will help remove barriers for employees to report such conduct by clearly identifying individuals to whom complaints may be made, will provide a more consistent response to complaints throughout the branch, will educate employees as to their rights and available resources, and will clarify the responsibilities of court management to prevent and address such conduct," said Third District of California Court of Appeal Justice Harry Hull Jr., who chairs the council committee that drafted the rule.

Adoption of the new guidelines comes on the heels of high-profile disciplinary proceedings against Justice Jeffrey Johnson, the Second District California Court of Appeal justice accused by the Commission on Judicial Performance of sexually harassing or acting inappropriately toward fellow jurists, research attorneys, security officers and other court employees over two decades. Johnson has denied most of the allegations. Johnson has disputed some of the report's findings. The commission has scheduled oral arguments in the case for March 18.

A Jan. 3 report on the allegations against Johnson by a panel of special masters noted that Second District court employees had expressed concerns about the lack of procedures for court employees to submit complaints about justices and others in the courthouse. Merete Rietveld, a Second District research attorney, drafted a petition in 2018 asking judicial branch leaders to review anti-harassment practices in the appellate courts, particularly when the accused is a judicial officer or court executive.

The petition, patterned after a similar letter sent by federal law clerks to U.S. Supreme Court Chief Justice John Roberts Jr. in 2017, was signed by dozens of appellate court employees and 10 justices from the courts of appeals. In October 2018, Chief Justice Tani Cantil-Sakauye created a working group to review harassment policies. That work led to the new rule enacted Friday.

Rietveld told The Recorder before Friday's council meeting she was "gratified" to see the development of the new rule, calling it a "strong message from leadership that the courts" won't ignore misconduct complaints from workers.

The new court rule gives individual courts leeway in drafting their own reporting procedures, a nod, Hull said, to different "structures, limitations and union relationships."

Some court representatives expressed concern that the rule does not offer enough specificity about definitions.

"In order to comply with the proposed rule, courts are required to have policies prohibiting 'inappropriate workplace conduct' and providing examples, yet it is entirely unclear what such conduct entails as intended by [the rules committee], and undoubtedly there will be extremely differing policies throughout the state," Summer Ryan, general counsel for the Shasta County Superior Court, wrote in public comments submitted on the then-proposed rule last year.

State Senator Hannah-Beth Jackson

Hull said Judicial Council legal staff will provide courts with a sample policy that would satisfy the new rule's requirements.

State Sen. Hannah-Beth Jackson, a Judicial Council member, also urged Hull and his committee to consider more specific guidance for ensuring that complaints will be handled in a way that assures victims their concerns are taken seriously.

"It doesn't say here who is going to do the investigation itself," Jackson said of the rule Friday.

Jackson continued: "That's actually an issue because there is some concern about the lack of objectivity and potential bias when these investigations do take place … People [are] very reluctant to come forward if they [do] not feel the investigative process would be a fair and equitable one."

Hull said courts will have a year to come up with their own workable solutions before the Judicial Council considers any new requirements or rule amendments in July 2021.

Read more:

'Failure to Take Responsibility': New Report Assails Appellate Judge Jeffrey Johnson

'I'm a Flawed Human Being,' Judge Says at Sexual Harassment Trial

CA Judge Calls Sexual Harassment Allegations at Trial 'Insulting' and Racist

Inside The Recorder's Request for Judicial Workplace Harassment Records