Cover sheet in Commission on Judicial Performance v. Howle . Credit: Mike Scarcella

A Legislature-backed deal is in the works that would allow the state auditor to finally begin a review of the Commission on Judicial Performance, the agency charged with disciplining judges.

The agreement would also appear to resolve litigation, now pending in the First District Court of Appeal, challenging the auditor’s ability to scrutinize the commission’s records.

Under the two-pronged approach, the Legislature has tucked language into a budget cleanup bill clarifying that the auditor cannot make public any records it obtains while investigating the commission’s work. That proposal could be voted on by both legislative houses as early as Monday and sent to the governor for his signature.

Meanwhile, the Commission on Judicial Performance has proposed amending its operating rules to allow the auditor to review confidential records. Commission leaders have argued that without the rule change they are barred by law from sharing documents with state Auditor Elaine Howle and her staff.

An expedited public comment period on the proposed rule change ended Thursday. Responses to the comments are due by Aug. 27.

Passage of the legislation and adoption of the amended commission rule “would allow the audit to proceed,” said Gregory Dresser, director and chief counsel of the Commission on Judicial Performance.

A spokeswoman for the auditor’s office did not return a message seeking comment.

Two years ago, lawmakers ordered the first audit of the commission in its 56-year history. The commission is a regular target of criticism from judges who complain they are chastised for minor missteps and improperly punished for errors of law. Family law advocates say the agency is cloaked in secrecy and does not go far enough in disciplining judges for misconduct.

In requesting the audit, four lawmakers cited the case of Ventura County Superior Court Judge Nancy Ayers, who received a private warning letter from the commission for bringing her guide-dog-in-training to her courtroom. Ayers challenged the discipline in 2016 and, after the state Supreme Court got involved, the commission withdrew its letter.

In October 2016, the Commission on Judicial Performance sued the auditor to block her access to disciplinary documents, citing strict confidentiality laws. Howle said she and her staff would abide by those laws. More than a year later, a San Francisco Superior Court judge sided with the commission, finding that the agency had a “constitutional right to control the confidentiality of its documents.”

The auditor appealed the ruling early this year. Then during budget hearings, legislators, trying to pressure the commission to allow the audit, stripped $500,000 in funding from the agency’s 2018-19 budget—an amount equal to the estimated cost of the audit. In June, lawmakers restored the money. One month later the commission proposed the confidentiality rule change.

Howle has asked to start the audit by Sept. 4, according to the commission.


Read more:

Judicial Performance Agency’s Budget Won’t Be Slashed by $500K After All

Lawmakers Move to Cut Judicial Commission’s Budget Amid Audit Dispute