On August 17th at 9:30 am in San Francisco Superior Court Department 302, an important public-interest hearing will take place. The case is the California Commission on Judicial Performance (CJP) v. the Bureau of the State Auditor (BSA) Elaine M. Howle. The hearing is scheduled to be presided over by Judge Suzanne Bolanos.

Several people have asked me to explain to them why this hearing is so important.  The following is not a comprehensive explanation.  It’s a broad overview explaining just the gist of the matter.

CJP is the state agency charged with overseeing the conduct of California’s nearly 1800 judges and justices.  The CJP has been in existence since 1961 and has never been audited. For years people have reported that their performance is less than stellar, and as a result is causing much hardship for people who can find no relief from unethical conduct in the courts.

The CJP has sued State Auditor Howle to stop her office from being able to audit their questionable performance.

In August of 2016, the California Joint Legislative Audit Committee (JLAC) issued the order for Ms. Howle and the BSA to audit the CJP’s performance and financials.  They asked Ms. Howle to examine more than two dozen questions broadly covering the agency’s “policies and practices for handling and resolving complaints against judges.”

The audit request came about because of public outcry, various reports and testimonies to the California Legislature that indicate the CJP is shielding and enabling judicial misconduct in legal proceedings (suborning of perjury, concealment of fraudulent court documents, bias causing wrongful outcomes of litigations, “case-fixing”, etc). 

There are judges who have also complained. Their complaints have been that the CJP allows itself to be misused to retaliate against judges who have spoken against insider politics, ethics problems and financial mismanagement in California’s judicial branch.  There is strong evidence that the CJP is not forthright nor consistent in its performance.

The citizen effort which caused the audit to come to fruition was led by Joseph Sweeney of Court Reform LLC, Kathleen Russell of the Center for Judicial Excellence, Political Science Professor Tamir Sukkary, and California Attorney Barbara Kaufman. 

Many other organizations and citizens sent letters and called their legislators in support of the need for the audit once Mr. Sweeney, Ms. Russell, Mr. Sukkary, and Ms. Kaufman opened the door. The judges’ trade organization, the California Judges Association, also sent a letter in support of the need for the audit of the CJP.

The scope of the proposed audit was prepared by the BSA last year. There are approximately eighteen areas in need of investigation. The CJP has primarily balked to having those areas audited which address their performance-failures to consistently adhere to CJP Rule 111.4. The Rule states,

“Discipline, including an advisory letter, shall not be imposed for mere legal error without more. However, a judge who commits legal error which, in addition, clearly and convincingly reflects bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty is subject to investigation and discipline.”

In October of 2016, the CJP filed their lawsuit against State Auditor Howle in the San Francisco Superior Court seeking to limit the scope of the proposed audit to their financials — but not their performance. They claim that one of the rules (which they wrote for themselves) Rule 102 prevents audit of their confidential case-files; and thus prevents audit of their performance when handling the cases.   

 News reports indicate that “the controversial lawsuit against the auditor was ordered by CJP Director Victoria Henley and reportedly will cost the public north of six figures. Henley is paid $194,000 per year by California taxpayers.”

Ms. Henley has served as CJP’s Director-Chief Counsel since 1991.  In May of 2017 she announced her plans to retire at the end of this year.

(Correction. Ms. Henley’s annual income is reported to be just shy of $270,000.00.)

The purpose of audits of government agencies is not to cause punishment for past misdeeds (including those by recent retirees). It is to investigate past and current problem areas so that suggestions for improvements may be made to cause better stewardship of government agencies in the future. 

The State Auditor’s stance is that Judge Bolanos must ultimately decide “whether the Legislature has the legal authority to require state agencies to provide confidential materials to the Auditor during an audit directed by the Legislature”.

Under the direction of Auditor Howle, the BSA has conducted numerous audits of many state agencies. These have led to performance reforms and improved financial efficiency in the public’s best interest. 

To our knowledge, no one has ever accused State Auditor Howle or her staff of being reckless with their handling of sensitive and confidential material. Multiple unfounded inferences within the CJP’s briefs that the State Auditor would somehow be less than professional when handling their confidential files, strongly appears to be a desperate attempt to paint a false light portrait to derail the comprehensive auditing of the CJP.

One may read all the briefs and declarations that have been filed in the matter of COMMISSION ON JUDICIAL PERFORMANCE VS. ELAINE M. HOWLE ET AL Case Number: CPF16515308 at the San Francisco Superior Court website: http://sfsuperiorcourt.org/

The private-sector government-watchdog, Judicial Watch, Inc., has submitted a friend of the court brief in support of the California State Auditor’s and her staff’s ability to perform the much needed and long overdue comprehensive audit of the CJP.  They are also requesting to appear at the August 17th hearing.

Judicial Watch’s recent Press Release provides an additional overview of the importance of the matter.  To quote:

“The case sheds much-needed light on the unbelievable history of a taxpayer-funded agency that’s conducted its business in private—and with no oversight—for 56 years, even though protecting the public is among its key duties. The agency is known as Commission on Judicial Performance (CJP) and it’s charged with enforcing rigorous standards of judicial conduct and disciplining judges in the nation’s largest court system.”

Sharon Noonan Kramer