Updated at 4:30 p.m. PST
SACRAMENTO — California’s chief justice will ask for “expedited” changes to the judiciary’s rule governing open records after the Judicial Council and several courts blocked public access to information about judges accused of sexual misconduct.
In a statement issued Tuesday afternoon, Chief Justice Tani Cantil-Sakauye said she has created a five-member working group to draft amendments to Rule of Court 10.500 that will require “all levels of the state court system” to disclose the names of judicial officers who enter into settlement agreements that resolve sexual harassment or discrimination complaints.
“I want to make sure there’s no ambiguity as to whether courts should be required to disclose those records now,” the chief justice said in a prepared statement.
“Judicial independence relies in part on judicial accountability,” Cantil-Sakauye continued. “The judiciary relies on the trust and confidence of the public it serves, and the public has a right to know how the judicial branch spends taxpayer funds.”
Cantil-Sakauye’s request follows the March 23 disclosure by the Judicial Council, responding to a records request by The Recorder, that the judicial branch has spent almost $600,000 since 2011 to investigate and settle complaints of sexual harassment by three judicial officers and two court employees. Attorneys for the branch refused, however, to identify the judges involved or detail what they had been accused of doing.
The requests for documents raised “complicated legal and ethical issues, including attorney-client privilege and other legal and ethical obligations,” the council’s legal services division said. The attorneys cited an exemption in Rule of Court 10.500 that allows courts to withhold information “regarding, or investigations of justices, judges (including temporary and assigned judges), subordinate judicial officers, and applicants or candidates for judicial office.”
Since then, The Recorder has requested similar records from all 58 trial courts, six courts of appeal and the Supreme Court. Branch officials have said that some courts may have handled and settled sexual wrongdoing complaints without notifying the Judicial Council.
In recent weeks, 23 trial courts said they had no responsive records. Four courts—Los Angeles, San Diego, Amador and Sutter County superior courts—said some or all of the records sought by The Recorder were exempt from disclosure under provisions in Rule 10.500.
In a four-page denial sent to The Recorder on Tuesday, an attorney for the Los Angeles County Superior Court said the records sought are exempt from disclosure because the state constitution gives the power to discipline judges to the Commission on Judicial Performance.
“In California, judicial officers, unlike officials in the legislative and executive branches of government, or private individuals, are subject to enhanced oversight with respect to their conduct and compliance with the Code of Judicial Ethics,” wrote Ivette Pena, the court’s chief deputy for legal services. “The California Constitution vests the Commission on Judicial Performance with responsibility for handling judicial misconduct and discipline.”
Pena also said the courts do not maintain records of the type requested and notes that the judiciary’s open records rule does not require courts to “assemble” or “compile” any data to respond.
Twenty-four trial courts said they are still reviewing the request for records. Seven have not responded to the requests.
Representatives of five Courts of Appeal—the First, Second, Fourth and Fifth—as well as the California Supreme Court said they had no responsive records. The appellate courts in the Sixth district has not responded yet.
Representatives of four Courts of Appeal—the First, Second, Fourth and Fifth—as well as the California Supreme Court said they had no responsive records. The appellate courts in the Third and Sixth districts have not responded yet.
The San Jose Mercury News reported in December that Conrad Rushing, then the presiding justice of the Sixth District Court of Appeal in San Jose, resigned while facing allegations of sexual harassment and discrimination against employees.
Daniel Potter, the Sixth District’s clerk, said in December that the court would not disclose information about the allegations against Rushing or the investigation, calling the situation “a personnel matter.”
Cantil-Sakauye’s working group will be comprised of five Judicial Council members: Justice Marsha Slough of the Fourth District Court of Appeal; Sacramento County Superior Court Judge Stacy Boulware-Eurie; San Bernardino County Superior Court Judge Kyle Brodie; Los Angeles attorney Gretchen Nelson of Nelson & Fraenkel; and Fresno attorney Rachel Hill with the Law Office of Rachel Hill.
“I am pleased that the Chief Justice sees the benefit of disclosing records of settlement agreements that resolve sexual harassment or discrimination complaints against judges,” Assembly Judiciary Chairman Mark Stone, D-Scotts Valley, said in an email. “This is a good start towards providing the public with the information they deserve about misconduct by government officials, regardless of which branch of government happens to employ them.”
This report was updated with additional comment.