The “Me Too” movement has come to California’s judiciary. The branch’s response so far has been “Not us.”
After the Judicial Council revealed in March that it has spent $600,000 to investigate and settle sexual misconduct claims, but refused to identify any of the judges, court employees or details involved, The Recorder asked every trial and appellate court in the state for related documents under the judiciary’s open records rule.
The Recorder sought three things: the waiver of any asserted privilege a court might claim to block the release of complaints against judges; any documents, including settlements, related to complaints of discrimination or harassment against judges dating back to 1998; and any records indicating the cost of investigating workplace misconduct by judges over the same timeframe.
No court agreed to waive any asserted privilege. A majority of the courts that responded said they had no responsive records related to sexual harassment complaints or investigation costs related to judges.
At best, the courts’ replies provide an incomplete picture of how pervasive the problem of sexual harassment might be in California’s courthouses. At worst, the responses point to shortcomings in Rule of Court 10.500 in one of the first large-scale, publicly visible tests of the eight-year-old public access law that judges wrote themselves.
That may indicate that workplace misconduct involving judges is incredibly rare. Or it may suggest that courts are invoking one of several rule exemptions, including a provision that does not require them “to create any record or to compile or assemble data in response to a request for judicial administrative records.”
Lassen County Superior Court, for example, said it had “no responsive records.” And yet in 2016 the court’s then-executive officer Andi Barone filed a federal discrimination lawsuit against the court, alleging that Judge Tony Mallery yelled, ranted and raised his fists at her and belittled female staff. The suit settled in 2017 with Barone receiving $100,000 and $84,800 in legal fees.
Placer County Superior Court, too, reported having no records related to judges and harassment. But executive Jake Chatters also noted in an April 16 response that former Placer Judge W. Jackson Willoughby was censured by the Commission on Judicial Performance in 2000 for engaging in “a pattern of inappropriate conduct in the workplace toward female employees,” including “the improper and unwanted touching of his bailiff’s breasts.” Willoughby retired in 2002.
A handful of courts, some of the biggest in the state, said they would not provide any requested records because court rules exempt disclosure of complaints about judges. Two courts did not respond at all.
The responses may not reflect everything going on in courthouses, said Barbara Lawless, a employment attorney with Lawless & Lawless in San Francisco. She spoke of an informal network of lawyers and court workers who share stories of misbehaving jurists.
Lawless said a judge threw her out of a court nearly 40 years ago for being pregnant.
“He said, ‘You’re in a family way,’” she recalled. “He said, ‘You tell your husband [also an attorney] to come down here and do this hearing.’”
Lawless said the courtroom atmosphere has improved with more women in the legal ranks and the current “huge focus on sexual harassment.” But the problems haven’t gone away, she said.
Judges “are just people in robes, and they make the same mistakes as other people,” Lawless said.
Lawless has not sued a court over a judge’s sexual harassment. The dynamics of litigating in or against a court where an employee worked and where she practices would be tricky, Lawless said.
“I wouldn’t hesitate to take one in a county where I don’t practice,” she said. “But would I do it in a county nearby? I don’t know.”
A proposed rule change that would disclose judges’ names in settlement agreements is hurtling toward approval by the Judicial Council on May 24. A public comment period on the changes closes Tuesday.
Although the changes may reveal some of the judges tied to the settlement figures released by the judicial branch in March, they would not appear to shed light on settlements that do not explicitly name the judge or substantiated claims that do not result in any compensation for victims.
Representatives of the California Supreme Court and five of the six courts of appeal said their courts had no responsive records to disclose.
Danny Potter, clerk of the Sixth District Court of Appeal in San Jose, said Friday that his court has “no records of any settlement documents, or records indicating the cost of investigations arising from complaints” relating to judges accused of harassment or discrimination.
“To the extent that your request seeks nondisclosable judicial administrative records, such records are exempt from disclosure,” Potter added.
The Mercury News reported in December that a confidential report concluded that then-Sixth District Justice Conrad Rushing engaged in sexual misconduct in the courthouse, including looking at nude photos of women while in his chambers and regularly commenting on the appearances of women on his staff. The court has refused to release the report.
For responses The Recorder received from California’s 58 trial courts, click the counties on the map below: