Elaine Howle, California State Auditor courtesy photo

A San Francisco judge had tough questions Thursday for state Auditor Elaine Howle and her quest to review confidential records maintained by the Commission on Judicial Performance.

Charged with disciplining the state’s judicial officers, the commission sued Howle in October to block her staff’s access to complaints filed against judges and other internal documents.

Howle is seeking a broad range of records from the commission to complete a legislatively mandated audit, which would be the first in the agency’s 56-year history.

The commission has said that it’s willing to provide agency financial and personnel documents as well as case statistics, but not specifics about complaint-handling, which it asserts it is prohibited from sharing.

San Francisco Superior Court Judge Suzanne Bolanos asked lawyers representing Howle, “why does the auditor need to see the documents,” if the commission has agreed to provide statistics on cases and caseloads?

Myron Moskovitz of the Moskovitz Appellate Team, said, “How do we know these statistics are true when you can’t see the underlying documents?”

“The auditor has said clearly we cannot do our jobs unless we look at their files,” Moskovitz said.

The unusual state agency-versus-agency case pits the interests of the auditor, acting at the direction of the Legislature, against the independent, voter-created Commission on Judicial Performance. The commission’s rules mandate that, except for certain instances, “all papers filed with and proceedings before the commission shall be confidential” to protect the identities of complainants and the reputations of accused judges who may be falsely accused.

But the secretive nature of much of the commission’s work has drawn criticism from judges who say the agency’s disciplinary system is unfair, and from family law litigants who seek tougher punishments for jurists.

Moskovitz said Howle has no interest in second-guessing the commission’s disciplinary decisions. She only wants to gauge how well the agency is following its own rules.

Bolanos noted, however, that one of the 19 issues the Legislature asked the auditor to evaluate calls on the auditor to “evaluate the outcomes of a selection of cases and the discipline imposed.”

“How is that not second-guessing what the CJP has done?” Bolanos asked.

Moskovitz said the description of the investigative area was a “brief outline” written by legislative staff and that Howle will only be assessing how well the commission adheres its own disciplinary standards. Howle has viewed confidential documents from other agencies many times before, Moskovitz said, and has never been accused of leaking such information.

“This case is based on fear,” Moskovitz said. “It’s not based on fact. [The CJP has} no facts. They’re just afraid of getting audited.”

Michael von Loewenfeldt, a partner with Kerr & Wagstaffe who is representing the CJP, said that the auditor had made a “policy argument” against the commissions’ confidentiality rule, one better pursued through the Legislature or commission and not a legal forum.

“This is not about whether the auditor is trustworthy,” von Loewenfeldt said. “This is not about whether the auditor will leak documents. The auditor has no right to see these documents under the rule.”

Bolanos, who did not issue a tentative ruling prior to Thursday’s hearing, took the matter under submission. She gave no indication when she would release a final judgment. Both sides in the case have said whatever decision she hands down will likely be appealed.