Elaine M. Howle, CPA
California State Auditor
621 Capitol Mall, Suite 1200
Sacramento, CA 95814
Re: Audit of the Commission on Judicial Performance
Dear Ms. Howle:
On behalf of the Commission on Judicial Performance (CJP), this is in response to the draft audit report that we received on April 4, 2019.
Introduction: CJP fully cooperated with the audit, which found no problems with CJP's confidentiality policy, the amount of discipline CJP issues relative to other judicial disciplinary agencies, or the quality of CJP staff.
At the outset, we note that CJP cooperated fully throughout the audit process. The audit confirmed the following important points. CJP has reasonable and appropriate confidentiality policies. There is no basis to conclude that CJP issues less discipline than similar agencies in other states. CJP commission members, attorneys, and staff have the proper training, qualifications, and experience to perform CJP's important work.
CJP responds to the audit report's specific recommendations, below.
Section I: CJP intends to implement the recommendations regarding improving its intake and investigation processes, and will be alert to potential due process issues raised by certain recommendations.
CJP intends to implement the recommendations in Section I of the report for its intake and investigation processes. In terms of detecting patterns of judicial misconduct, there are potential due process issues (to which CJP will pay careful attention) with basing new investigations on previously-closed complaints. This is especially the case where the perceived pattern has to do with legal error, as legal error does not constitute judicial misconduct.
Section II: CJP does not need to take action on these recommendations, which are for the Legislature, but notes that its unitary system, like that of other public entities, comports with due process, and has been approved by the California Supreme Court.
The recommendations in Section II of the report are for the Legislature and do not require any action by CJP. We do, however, want to address some of the comments in Section II regarding CJP's unitary structure. Specifically, the California Supreme Court has consistently upheld the unitary structure of CJP as a judicial discipline agency in the face of due process and other challenges. The Supreme Court has made clear that CJP provides proper notice to judges of allegations against them and a sufficient opportunity to respond to those allegations. CJP thus provides adequate due process to judges involved in its proceedings. (Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371, 390-395.)
There has never been a successful challenge to CJP's structure and authority, including the time period from 1994 (when Proposition 190 passed) to the present. This history establishes that there is no problem, due process or otherwise, with CJP's current unitary structure. Moreover, there are many unitary public entities in California that have both investigative and adjudicative functions, including the Legislature itself and city planning commissions. As with CJP, the unitary structure of these entities does not violate due process. Finally, we note that there is no state that has a judicial discipline agency structured exactly like the one proposed in the audit report.
The analogy, on pages 4 and 49 of the audit report, that the commissioners are like a jury in a criminal case "being composed of detectives who investigated the case" is unfortunate, and simply wrong. Commissioners do not investigate cases, and are not at all like detectives. Investigating attorneys conduct investigations and report on the evidence to the commission. Commissioners do not communicate with investigating attorneys once they begin to adjudicate a case. The audit found no evidence that commissioners improperly considered allegations investigated, but not proven, when adjudicating cases, because there is no such evidence.
Section III: CJP intends to improve its transparency and modernize operations, but additional funds, beyond those recommended by the audit, may be required.
CJP intends to implement the recommendations in Section III of the audit report, regarding measures to improve transparency and modernize our operations. There are a few specific issues that we wanted to highlight. CJP would not be able to accomplish its work without our hardworking and dedicated non-attorney staff; we submit that the costs associated with our non-attorney staff should be regarded as expenditures that are a part of CJP's core function. As we said throughout the audit process, we would like to acquire a new case management system (CMS) that will make our operations more efficient and that will allow CJP to accept online complaints. (Our current CMS is more than 20 years old.) We intend to begin investigating a new CMS right away. As a part of that investigation, we will determine whether the recommended budget increase is sufficient to pay for a new CMS, or whether we will need to seek additional funds to do so. We are also interested in the possibility of reducing overhead to free up money for operations, and will also begin investigating those possibilities right away. Any such overhead reduction will need to account for concerns for the safety of commissioners and CJP staff, as well as CJP's operational needs. We note that, if we are able to locate alternate state office space in the Bay Area, CJP would need a budget increase to cover the cost of a move to that office space.
In closing, CJP would like to acknowledge the professionalism demonstrated by the State Auditor's staff throughout the audit process.
Very truly yours,
CALIFORNIA STATE AUDITOR’S COMMENTS ON THE RESPONSE FROM THE COMMISSION ON JUDICIAL PERFORMANCE
To provide clarity and perspective, we are commenting on CJP's response to the audit. The numbers below correspond to the numbers we have placed in the margin of CJP's response.
We agree that CJP cooperated with the audit once it began. However, as we note here, the start of the audit was delayed for almost two years due to litigation with CJP.
We do not opine on whether the amount of discipline CJP issues is appropriate compared to other states. Instead, we explain here that there were significant limitations in our ability to use information about other states, and we therefore did not use that information to support findings and conclusions.
We look forward to reviewing evidence of how CJP implements our recommendations. Our report describes significant gaps in CJP's oversight of potential patterns of judicial misconduct. Here, we describe how CJP's intake process does not identify patterns of complaints that—taken in the aggregate—could point to potential judicial misconduct. We also explain here that CJP lacks the data it needs to identify patterns of complaints related to legal error. Also, the section starting here discusses how investigators did not always consider the broader histories of allegations against judges when determining how to conduct their investigations. To better detect potentially chronic judicial misconduct, CJP will need to develop robust procedures for analyzing patterns of complaints, including those involving legal error.
We disagree with CJP's perspective. As we discuss here, the Supreme Court has issued decisions concluding that CJP's investigative and adjudicatory structure does not violate judges' due process rights. Yet, these court decisions are decades old and rely in part on observations about CJP's structure that have since changed as a result of the passage of Proposition 190 in 1994, a constitutional amendment that increased the commission's adjudicatory authority. Since Proposition 190 made significant changes to CJP's structure, the Supreme Court has not ruled on whether CJP's current unitary structure creates due process concerns for judges. Further, we do not believe—as CJP indicates in its response—that the history of challenges to CJP's structure and authority are evidence there are no problems with CJP's current unitary structure. As Figure 12 shows, the current unitary structure means that the commission is privy to unproven allegations when it issues discipline. Further, as we state here, a weakness of the commission's unitary structure is that the commission could be perceived as having prejudged cases. Finally, as we indicate here, the current unitary structure hinders CJP from more fully realizing the intent of the voters. These problems with CJP's current unitary structure are the reasons why we recommend that the Legislature propose and submit to the voters an amendment to the California Constitution that would, among other things, restructure the commission as a bicameral entity.
CJP's observation that no other judicial discipline commission is structured exactly like the one we recommend does not undercut the need for or diminish the importance of the changes we have recommended. Here, we discuss how 17 states have adopted a bicameral structure for their judicial oversight commissions. Further, on that same page we discuss how the American Bar Association's model rules for judicial disciplinary enforcement recommend a bicameral structure that separates investigatory and adjudicative functions. To form our recommendation, we identified the components of these model rules that are relevant to California and CJP. The fact that we concluded California should adopt a structure and process for judicial discipline that is different from other states is not a cause for concern.
Due to final formatting of our report, the content to which CJP refers now appears here and here. On those pages, we state that although it is not identical in nature, CJP's structure is analogous to a jury in a criminal case being composed of detectives who investigated that case. CJP believes that this analogy is unfortunate and wrong. We disagree. Much like detectives who investigate allegations of criminal activity, commissioners are privy to allegations of misconduct that are not ultimately proven by evidence—which we illustrate in Figure 12. In the criminal justice system, the roles of the investigator—a detective—and the ultimate decider—usually a jury—are purposefully separated to ensure that individuals receive impartial trials. However, as we explain throughout Chapter 2, the commission serves in both the investigative and adjudicative roles. Finally, nowhere in our report do we state or imply that commissioners are conducting CJP's investigations.
We stand by our conclusion that CJP spent 61 percent of its $5.2 million budget on its core functions of intake, investigations, and formal proceedings. CJP's annual reports describe its support staff costs as part of its "general operations" and not as part of the costs related to intake, investigations, or formal proceedings. In the annual reports that cover our audit period, CJP has stated that it spent between 35 to 46 percent of its budget on its general operations. We recognize the important role of CJP's administrative staff in supporting CJP's attorneys and executives. However, CJP's administrative staff do not review complaints at intake to determine if they merit investigation, perform investigations and make recommendations about possible discipline, or serve as attorneys during formal proceedings. Therefore, we do not believe they can reasonably be considered a part of the core function and mission for which the Legislature and the Governor annually appropriate CJP funding. Finally, this is the first time CJP has shared concerns with us about not including its support staff in this calculation despite the fact that we shared this conclusion with CJP twice during the audit.