Elaine Howle.

The Commission on Judicial Performance and the state auditor formally ended their litigation over confidential disciplinary files Tuesday, when an appellate court approved a request to give the auditor access to the records.

The First District Court of Appeal reversed a December 2017 order by San Francisco Superior Court Judge Suzanne Bolanos that blocked the auditor, Elaine Howle, from starting a legislatively mandated review of the commission’s disciplinary practices. The appellate court’s order was issued one day after Gov. Jerry Brown signed legislation clarifying that Howle’s office cannot make public any records it obtains during the audit.

“The Superior Court decision might … have encouraged other state and local agencies to evade or resist audits of their activities,” Howle’s attorney, Myron Moskovitz, said in an email. “So the state auditor is … happy that this problem has been eliminated.”

Kerr & Wagstaffe partner Michael von Loewenfeldt, who represented the commission, did not immediately return a message seeking comment.

A six-page settlement agreement released Wednesday said the two parties will issue a joint statement within seven days of the court order announcing that the lawsuit was settled “in the best interests of the public.”

Read the settlement agreement between the CJP and the state auditor:

“However neither party shall claim that they ‘prevailed’ on the appeal or that the reversal was anything other than a stipulated result reached after settlement discussions,” the agreement said.

The two agencies had signaled an end to the two-year-old dispute in August when the related legislation was introduced and the commission proposed amending its operating rules to allow the auditor to review confidential records. Commission leaders had argued that without the rule change they were barred by law from sharing documents with Howle.

State lawmakers in 2016 ordered the first audit of the commission in its 56-year history after complaints from judges and litigants about the judicial disciplinary process and its secrecy.

The commission, citing confidentiality laws, sued the auditor in October 2016 to block her access to discipline documents. Howle said she and her staff would abide by those laws. More than a year later, Bolanos sided with the commission, finding that the agency had a “constitutional right to control the confidentiality of its documents.”

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

Moskovitz said the audit should begin in a few days. Both sides will bear their own legal fees and litigation costs, according to the settlement agreement.


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