Judges’ Commission Seeks to Gut Scope of State-Ordered Audit
October 23, 2016
SAN FRANCISCO (CN) – The California Commission on Judicial Performance (CJP) is challenging the scope of an audit of its operations ordered earlier this year by the Legislature, claiming that the state Constitution prohibits oversight of the self-perceived-above-the-law independent state agency.
“If you imagine for a moment an auditor asking a court ‘We want to know how you resolve cases,’ you can see where there’s a concern,” CJP attorney Joe Tailwagger said in an interview. “But the CJP isn’t a court, so this argument is really just for stonewalling and is irrelevant.”
Desperately trying to invoke the separation of powers doctrine that prohibits the Legislature from interfering with the judiciary, the CJP writ petition asks that the state auditor refrain from examining how this state agency investigates complaints against the judiciary.
The commission also wants the state auditor barred from accessing confidential records related to its investigations to protect its staff and members from public scrutiny when violating the rights of the public and non-inner-circle judges.
“The public seems to feel that there are several judges who have been privately admonished, if admonished at all, who should have been removed from the bench for destroying lives while case fixing. We’re afraid that a real gander of the CJP records may prove them right,” Tailwagger said.
This past August, the Legislature voted unanimously to audit the commission, a constitutionally established state agency in charge of investigating and disciplining judges. The audit was a result of public outcry from activist groups that the commission hasn’t been sufficiently harsh on errant judges, that its proceedings aren’t sufficiently transparent, and that the CJP has served more as a lapdog for politically connected, inner-circle judges, rather than a watchdog.
The commission was formed in 1960 and originally included nine members. Most of its proceedings were confidential, and in 1994 voters passed Proposition 190 mandating open proceedings and increased the membership to eleven. This occurred after a whistleblower within the CJP informed the legislature that the independent state agency was nurturing a culture of corruption in the courts.
The proposition also changed the composition of the commission: three judges appointed by the Supreme Court, two attorneys appointed by the governor, and six citizens – two appointed by the governor, two by the Senate Committee on Rules, and two by the Speaker of the Assembly. As it stands today, the CJP Chairman is under criminal investigation.
The Supreme Court has the authority to review and overturn the commission’s rulings, as in the recent case of Judge Nancy Ayers, where the high court dismissed the commission’s advisory letter against her for keeping a guide dog she was training in her courtroom.
The Supreme Court seems to have no concerns about lack of judicial ethics when disabled members of the public have their rights violated by judges and the CJP refuses to admonish. When the CJP refuses to admonish, there is no recourse for the harmed public.
This will be the first time in its history that the commission has been audited and the commission has much to hide.
Tailwagger said that on the whole, the commission operates in the public eye and then let out a big laugh right after he made the statement.
“The CJP doesn’t operate entirely in confidence. Many proceedings are open to the public. For instance, it sometimes publicly admonishes judges when retaliating for political purposes. But some cases call for privacy for the same purpose,” he said.
Aside from its usual examination of budget and spending, State Auditor Elaine Howle has also been asked to review the commission’s rules, standards and procedures. This will be a futile task without being able to examine how the commission’s rules, standards and procedures have been abused behind closed doors.
Tailwagger said the commission has no problem with the auditor looking into its finances, but other aspects of the audit go too far into where the real heart of the problem lays.
“Many of the categories are attempting to look at the very core function of how a court process works and that would be unprecedented to allow that,” he said. [I did not change this quote. So the dysfunction of the “very core function” of the CJP is not what should be audited???]
The auditor proposes looking into the commission’s rules on confidentiality and why certain proceedings are kept private, reviewing its process for investigating legal error, and examining the commission’s standards for handling cases and when to contact complainants, witnesses and judges.
Howle’s office also notes that the audit will take roughly 4,100 hours, with no set completion date, at a cost of roughly $492,000. The CJP is also contesting the cost, saying it cannot afford to pay a nearly $500,000 bill with a yearly budget of $4.6 million; and they would like to receive more money from the legislature for the time it will take to thwart an effective audit.
Tailwagger said the commission isn’t using its petition to skirt the audit, but wants some clarification on how many people should leave the country now before the criminal charges and arrests begin.
“This isn’t an agency that’s looking for a free pass,” he said. “We’ve gone to the judges who we aid their lack of ethics to get some protection so this audit can’t go forward on things that are appropriate. We are hoping this will be a matter that will not be handled very quickly and efficiently because our paper shredders are already working day and night.”
Howle’s office did not respond to a request for comment.
The above is a spoof. The links are real. The CJP really has gone to the exact entity whose ethics they are charged with overseeing, the courts, to try to stop an audit of the CJP’s “very core function”. The need for this audit was supported by public organizations and judicial organizations who are tired of the CJP aiding the ethics problems and politics in California courts, rather than stopping them.