California’s Judicial Council is reviewing the use of confidentiality pacts in judicial misconduct settlements after a recent release of documents revealed language designed to keep allegations of wrongdoing secret.
Judicial branch lawyers are in the “early stages” of considering whether the confidentiality clauses should be eliminated from future settlements, council spokesman Peter Allen said Friday in response to questions from The Recorder. It’s unclear whether the full Judicial Council would need to approve such a policy change and whether it would apply to courts that draft their own settlements without council lawyers’ assistance.
Last week, the Judicial Council released eight settlement agreements involving judges that judiciary lawyers say were accused of sexual harassment or sex discrimination between 2012 and 2018. The complainants were paid a combined $645,000 in settlements.
None of the documents, which were heavily redacted, provided details of the allegations. All eight settlements included confidentiality clauses barring signatories from talking about what led to the settlements or how much the complainants were paid. Some specifically told the parties not to talk to the media. Two of the settlements—one from Santa Clara County Superior Court and the other from San Bernardino County Superior Court—offer the parties a script to read if they are asked about the agreement.
In the San Bernardino County court, an unnamed former employee was paid $25,000 to settle allegations of sex discrimination she made against an unnamed judge. The agreement says that if she is asked about her termination she “promises to say nothing more than ‘I elected to resign from the court to seek other opportunities.’”
The judiciary released the settlement documents to The Recorder and other media outlets in response to a recent change in Rule of Court 10.500 that requires public access to all taxpayer-funded settlements tied to judicial misconduct.
In pushing for the rule change in March, Chief Justice Tani Cantil-Sakauye said “judicial independence relies in part on judicial accountability. 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.”
But the redacted documents offer scant information other than the branch paid money to someone in response to a nonspecific allegation against a judge. And court officials say the confidentiality agreements prevent them from offering any explanation.
Asked about her court’s $2,500 payment in 2012 to settle a gender discrimination claim, Alpine County Superior Court executive Ann Greth recently declined to comment. She said in an email that “the settlement agreement includes provisions that limits the court’s ability to discuss the matter or the agreement. While Rule 10.500 compelled disclosure, it does not eliminate the terms of the agreement that we feel must honor.”
The state Legislature, hit last year with accusations that it had allowed a culture of harassment and misconduct against women to fester, has enacted much broader transparency policies. The state Senate and Assembly now released some details, including names of the accused, in substantiated harassment claims made against legislators and top legislative staffers.