More transparency is needed to adequately judge the judges
The California Commission on Judicial Performance is the state’s judicial watchdog agency. Based in San Francisco, the commission is made up of judges, lawyers and members of the public. They are the judges of the judges, the sole public agents charged with investigating magistrates accused of judicial misconduct. Yet the commission’s deliberations are conducted completely under the radar, with no public scrutiny.
The CJP meets about seven times per year and receives its authority from Article 6, Section 18 of the California Constitution. The current chair is Erica Yew, a Superior Court judge.
The commission’s task is to provide oversight and accountability over California’s 1,825 judges. The CJP handles complaints (primarily from litigants) regarding judicial misconduct, bias and abuses of power. Last year, the CJP received 1,212 such complaints against judges, court commissioners and referees. It chose not to take action on 1,039 complaints of those submitted last year. That’s less than 9 percent of complaints that it acts on.
It’s understandable the CJP would not take action on many of the complaints that it receives. In numerous cases, although the litigants are clearly not happy with the judges’ decisions, not enough evidence points to judicial misconduct.
In other cases, the judge made legal errors. In most situations, legal error is not misconduct unless it involves “bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law or any purpose other than the faithful discharge of judicial duty” as established in the California Supreme Court’s 1999 ruling in the Oberholzer v. CJP case.
Unfortunately, the only option for cases involving legal error is to appeal the trial court’s ruling. Appeals are expensive and enormously time-consuming.
I recently sent a complaint to the CJP regarding possible judicial misconduct of the court commissioner in my case. Superior court commissioners are at-will subordinate judicial officers appointed by, and serving superior court judges. Since my complaint was about a commissioner, I had to send my complaint letter, completed form and documents to the local trial court before I could send them to the CJP.
I received a response from the local court well over two months after I sent in the complaint. Not satisfied with the local court’s response, I sent my complaint and documentation to the CJP for independent review. Shortly thereafter, the CJP responded with a brief, impersonal form letter stating they chose not to take any further action in my case in their March meeting. No explanation was offered.
While a CJP investigation may not have been warranted in my case, it seems to me the CJP owes it to the public to briefly explain why the commission chooses not to take further action on complaints.
Subsequently, I found out from my state senator’s office that the CJP’s meetings are neither open to the public nor subject to the California Public Records Act, Brown Act or Freedom of Information Act.
Not even the CJP clerical staff is allowed to attend during deliberations.
Why is the commission operating in such a secretive fashion? Isn’t the commission supposed to be serving the public?
The CJP’s website home page states, “The commission’s mandate is to protect the public, enforce rigorous standards of judicial conduct and maintain public confidence in the integrity and independence of the judicial system.”
What inspires public confidence in a democratic system is openness and transparency. Sending off brief, impersonal form letters offering no explanation for the CJP’s decisions, holding private meetings and closing off information access certainly does not inspire public trust and leaves the average citizen wondering why the need for secrecy, more characteristic of authoritarian regimes.
Surely, we can and must do better than this.