Have There Been Concerns About the Commission on Judicial Performance in the Past? - Recall Judge Aaron Persky

Have There Been Concerns About the Commission on Judicial Performance in the Past?

A:

Yes. The Commission on Judicial Performance is a state agency that handles complaints of judicial misconduct. The Commission itself has long been the subject of serious public criticism for being nontransparent about how it makes decisions and what evidence it considers, and for failing to adequately investigate complaints against judges. According to Kathleen Russell of the nonprofit Center for Judicial Excellence, the Commission “has strayed far from its mission of protecting the public. They are simply not disciplining judges for actionable misconduct.” The lack of public oversight that the Commission provides for California’s judicial branch earned the state an “F” for judicial accountability from the Center for Public Integrity in a recent in-depth study.

In a typical year, the Commission dismisses 90% of its complaints after an initial review, and only imposes discipline in approximately 3% of complaints. Of that 3%, nearly 90% are handled through a confidential admonishment. A recent study by an independent nonprofit organization reported that the Commission’s rate of discipline is far lower than that found in other states. It is difficult if not impossible for the public to assess why the rate of discipline is so low, given that the Commission also insists that it is the only state agency that is not subject to any of California’s open records and open meeting laws. It recently refused to produce any records whatsoever in response to a request from the First Amendment Coalition.

As a result of sustained public criticism of the Commission including from “legislators, reform advocates, and even judges,” the 56 year old agency was finally ordered by the Assembly late in 2016 to undergo its first-ever audit by the state. However, before the audit began, in October 2016, the Commission sued the auditor to block it. The Chairs of the Senate and Assembly Judiciary Committees both sharply criticized the Commission’s lawsuit. Senate Judiciary Committee Chair Hannah Beth Jackson said that “no state agency is above the law, nor above its fundamental responsibility to be open and transparent to the public.” In late November 2016, Elaine Howle, the California State Auditor, responded by suggesting that the lawsuit was frivolous, and arguing that she should be permitted to conduct the review ordered by the state legislature. The case is still ongoing.