In the first known test of the California court system's year-old double standard of accountability, a current public records request denial shows how the insulation of lower-level judicial officers against public awareness of misconduct complaints—confirmed or otherwise after investigation—differs from how the courts say such information in other government agencies should be exposed to public review.

The underlying controversy stems from the recent sentencing to prison terms of up to 14 years of a San Jose area towing company proprietor and several relatives for removing and storing vehicles and suing innocent (and typically poor) individuals for the resulting fees in small claims court. 

As reported last Friday by Tracey Kaplan in the San Jose Mercury News, repeatedly the defendants protested that they were no longer the vehicles' owners—or never had been—but to no avail.  It was only after years of this scam that an auto auction company attorney representing an insurance carrier noticed the pattern, spent many hours nailing down its contours and reported the findings to the District Attorney of Santa Clara County, who then moved to prosecute.

A side-effect of the inquiry was to raise the question of why Gregory Saldivar, the Morgan Hill court commissioner who ended up handling almost all of the extortionate small claims cases, ruled in the towing company's favor against hundreds of victims in all but two instances. As the Mercury News reports,

Former prosecutor Dale Lohman, who brought the charges against the family and recently retired, ... said questions still remain about how the commissioner failed to notice the pattern. Another court officer, Judge Pro Tem Michael E. Hingle, immediately smelled something fishy after he filled in just one day at the south county courthouse and was refused permission to hold a special hearing on it, she noted.

"At the very least, Salvidar was asleep at the switch,'' Lohman said. ''How many people have to tell the same story -- that they don't own the car -- before you start scrutinizing more of it.''

Saldivar, a commissioner for more than 14 years who ran unsuccessfully several times for superior court judge, continues to work in the new Morgan Hill courthouse, handling a typical commissioner caseload of small-claims, traffic and misdemeanor matters. He declined to comment.

(Attorney) Adler in 2007 sent a formal complaint about Saldivar's conduct to then-Presiding Judge Catherine Gallagher. According to a letter Gallagher sent to Adler, the court hired an outside attorney to investigate, a rare move for an inside disciplinary probe by the court.

But Gallagher did not find reason to forward the case to state disciplinary authorities. The Superior Court denied the Mercury News request for the report on the grounds it was an internal personnel matter and therefore privileged.

At that time not only was the judicial branch not covered by the California Public Records Act (CPRA), but it had no body of rules of its own giving the public a presumed right of access to its internal administrative records as a whole. But in the latter half of 2009 just such regulations were formulated, expressly declaring the CPRA as their model and court interpretations of that law as the guidelines to be used in applying the new transparency regime.  The resulting Rule 10.500 of the California Rules of Court took effect on January 1, 2010.

Two days ago, prompted by the towing scammers' sentencing, the Mercury News' Kaplan sent a new letter to the Santa Clara Superior Court, addressing it to the new presiding judge, Richard Loftus, and requesting access to "the report prepared by outside attorney Doug Freifeld about Commissioner Greg Saldivar’s handling of small claims cases filed by any of the following people or their companies -- Vincent Cardinalli, his son Paul Greer, daughter Rosemary Ball, son-in-law Michael Ball."

In a rapidly produced response apparently drafted for the most part by staff attorneys of the Administrative Office of the Courts in San Francisco, Judge Loftus yesterday reponded with a renewed denial, this time based on exemptions built into the new Rule 10.500:

The requested record is exempt from disclosure under section (f)(3) (exempting the disclosure of information that would constitute an unwarranted invasion of privacy), section (f)(5) (exempting from disclosure records that are considered privileged under the California Evidence Code) and section (f)(7) (exempting records related to evaluations of, complaints regarding, or investigations of subordinate judicial officers) of Rule 10.500.  Although the exemptions of Rule 10.500 are permissive and not mandatory, we decline your request to waive the exemptions and voluntarily disclose the requested report. Investigation of personnel matters requires the cooperation of individuals who may not otherwise cooperate in providing information absent an understanding that such information will remain confidential to third parties, to the extent possible.  The Court’s ability to conduct accurate and thorough investigations will be undermined if we voluntarily disclose the results of such investigations.

Examining this rationale one element at a time, its arbitrariness becomes evident.

1. Saldivar's privacy Interest is outweighed here by the public interest in seeing justice done.

The Public Records Act "privacy" exemption on which section (f)(3) is based has been interpreted by the courts for more than 30 years as not applicable to complaints, investigations or both concerning allegations of serious misconduct by public employees, especially when those employees are public officials. In the most recent case, BRV, Inc. v. Superior Court , 143 Cal.App.4th 742 (3d Dist. 2006), the court held that the report of a private investigator hired by a school district to sift and evaluate parental complaints against its superintendent was not exempt from public disclosure as a pupil record or under the exemption protecting personal privacy in Government Code §6254, subdivision (c).

The case stemmed from complaints expressed in 13 letters received in March 2004 from parents and/or students in the very small Dunsmuir High School, concerning the principal (and superintendent of the Dunsmuir Joint Union High School District), Robert Morris, accusing him of verbally abusing students in disciplinary settings as well as sexually harassing female students.  The school board, upon receipt of the letters, held a closed session the following month to take oral complaints from some parents. 

On May 4 the board held a closed session labeled as addressing issues of performance evaluation and “discipline/dismissal/release.” The trustees emerged into open session and voted to hire a private investigator to investigate the complaints and provide them with her own evaluation of their accuracy and credibility.  One week later, after a two hour closed session with Morris, it was announced that he had requested and trustees had agreed that his contract would not be renewed when it expired in June 2006. 

The investigator meanwhile interviewed 27 parents, current and former students, and district employees; prepared nine memoranda describing other investigative measures she took; and prepared a lengthy letter detailing her factual findings and conclusions.  She dated her report July 24 and submitted it to the board.  On the previous day Morris had submitted his resignation effective December 31, on condition of board acceptance of an agreement negotiated by his and the district’s lawyers. The school board approved the agreement and accepted his resignation three days later.  But meanwhile trustees had sent, dated July 19, a copy of the investigator’s interview summary to selected complainants, seeking their reactions, and the Redding Record Searchlight, the daily newspaper of record for the region published by BRV, Inc., obtained nine of the summaries and complainant responses, as well as some of the original complaint letters. 

BRV filed a CPRA request for copies of the investigator’s report, documentation of the district’s hiring of the investigator, and Morris’s letter of resignation.  The district provided all requested material but the report, asserting that it was exempt from disclosure under the CPRA.  BRV petitioned for disclosure under a writ of mandate, all Siskiyou County Superior Court judges recused themselves or were disqualified, and the case was assigned to a retired Trinity County judge.  He reviewed the investigator’s report in camera and concluded that only the portion finding complaints to be true—accusations that Morris had yelled at students—were releasable.  The majority of the report, exonerating Morris, were not releasable, he concluded, because they had not met the test under relevant case law, i.e. being shown well-founded or reliable. 

On appeal, the Third District began by noting that

a court determining whether personnel records should be disclosed first "must determine whether disclosure of the information would `compromise substantial privacy interests; if privacy interests in given information are de minimis disclosure would not amount to a "clearly unwarranted invasion of personal privacy," . . .
    Second, the court "must determine whether the potential harm to privacy interests from disclosure outweighs the public interest in disclosure." In weighing the competing interests, "we must determine `the extent to which disclosure of the requested item of information will shed light on the public agency's performance of its duty." . . .

The court had little trouble finding case law supporting its conclusion that “Certainly, Morris has a significant privacy interest in his personnel file, including the Davis report.”  And it likewise was unhesitant in declaring,

Without doubt, the public has a significant interest in the professional competence and conduct of a school district superintendent and high school principal. It also has a significant interest in knowing how the District's Board conducts its business, and in particular, how the Board responds to allegations of misconduct committed by the District's chief administrator. We thus must determine whether the potential harm disclosure of the report could cause to Morris's privacy interest outweighs the public's interest in disclosure.

The court prefaced its balancing analysis by sounding the key theme that would resolve its decision, quoting Braun v. City of Taft, 154 Cal.App.3d at 347 for the proposition that

“[T]he constitutional right of privacy must be balanced against the public's interest in its business in much the same way that the courts have sought accommodation of the reputational interests of the individual and the United States Constitution's First Amendment's protection of press freedoms. . . Although one does not lose his right to privacy upon accepting public employment, the very fact that he is engaged in the public's business strips him of some anonymity."

The court then surveyed the line of cases on disclosure of public employee misconduct investigations, concluding most recently that the public has a legitimate interest in learning of complaints of serious (even if not criminal) misconduct lodged against public employees, together with any investigated findings and disciplinary results, when the complaints are found to be true, or result in discipline, or where there is otherwise, in the words of a 2004 decision, “reasonable cause to believe the complaints were well-founded.”  But applying that standard, the court reasoned, required a certain relaxation when the alleged misbehavior behavior was that of a public official.

Here, the trial court relied upon these cases to preclude release of the Davis report, but these cases are distinguishable. None of them dealt with a public official of the position of Morris who, under the Sullivan standard, had a significantly reduced expectation of privacy in the matters of his public employment. The potential injury here is to his reputation, but as a public official, he knew his performance could be the subject of public, "vehement, caustic, and sometimes unpleasantly sharp attacks . . . ." The constitutional protections of free speech, press, and, in this state, access to public agency records to observe the conduct of public business are not forfeited by the risk of injury to official reputation.
    Here, members of the public were greatly concerned about the behavior of the city's only high school superintendent and his governing elected board in responding to their complaints. Indeed, from the public's viewpoint, the District appeared to have entered into a "sweetheart deal" to buy out the superintendent from his employment without having to respond to the public accusations of misconduct. The public's interest in judging how the elected board treated this situation far outweighed the Board's or Morris's interest in keeping the matter quiet. Because of Morris's position of authority as a public official and the public nature of the allegations, the public's interest in disclosure outweighed Morris's interest in preventing disclosure of the Davis report.
    We reviewed the report, but because of Morris's status as a public official, we applied a lesser standard of reliability than we otherwise would for a nonpublic official under the rule of Bakersfield. Although the investigator determined most of the allegations were not sufficiently reliable, we could not conclude the allegations were so unreliable the accusations could not be anything but false. The report exonerated Morris of all serious allegations of misconduct except those relating to outbursts of anger. In this circumstance, the public's interest in understanding why Morris was exonerated and how the District treated the accusations outweighs Morris's interest in keeping the allegations confidential.

(Emphasis added) If the BRV case's public figure standard, used to compel release of an investigator's report concerning allegations of misconduct by a school principal, were applied to the court-hired investigator's report concerning allegations of suspect case handling by a judge, the conclusion would be inescapable that any privacy interest the judge might have would be overwhelmed by "the public interest in understanding why (Saldivar) was exonerated and how the (superior court) treated the accusations."  And where the privacy exemption is asserted as it is here, Rule 10.500 requires that the standard in the BRV case be applied.

2. The attorney-client privilege asserted here is misplaced as a basis for withholding the report.

First, whoever the client is here (The judge who ordered the investigation? The superior court as such?) is immune from any kind of civil or criminal liability for any act or omission emerging from whatever factual findings might be in the report.  If a teacher, policeman or other ordinary government employee misbehaves or fails her legal duty in a way that causes someone harm, that someone can sue both the offending employee and the agency that employs her.  Accordingly, if the employer wants to nail down the facts about a complaint of intentional or negligent misconduct, it has good reason to place the inquiry in the hands of its lawyer—to keep the findings from being discovered by the injured party and used in a legal action against it, as well as to advise the best legal course of conduct accordingly. This is not the case in the judicial system. Neither the superior court nor any of its judges can be sued or prosecuted because of how the judges handle their cases—unless, for example, a presiding judge has been engaged in a criminal conspiracy to have certain  cases steered to a particular judge for corrupt disposition. Barring that highly improbable situation, there is no real need to invoke the attorney-client privilege here.

Second, it is not self-evident that the attorney was engaged in this case for legal services.  It does not take a lawyer to simply interview witnesses, review records, accumulate facts and file a report, and the fact that an investigation of allegations is conducted by a lawyer does not automatically render the report privileged. As noted by the California State University's general counsel in a briefing paper on the attorney-client privilege, "Where a lawyer is called upon to play a role other than as counsel (e.g., investigator), the privilege does not apply."

Third, even if the privilege were appropriately available here, the client can waive it in the public interest; it is not a mandatory rule of secrecy.

3. Those interviewed by the investigator can be shielded without suppressing the whole report.

One of the fundamental rules in the Public Records Act is that the government may not withhold an entire document on the basis that some of its contents are legally confidential. That principle is also adopted in Rule 10.500, section (e) (1) (C): " If a judicial administrative record contains information that is exempt from disclosure and the exempt portions are reasonably segregable, a judicial branch entity must allow inspection and copying of the record after deletion of the portions that are exempt from disclosure." This approach was taken by the court of appeal in the BRV case, where it ruled that the names of students, parents and other witnesses interviewed by the investigator must be removed from the report prior to release. In this case Judge Loftus does not assert that the witnesses were guaranteed anonymity, and there is no indication otherwise that they were. But in any event, while such investigations may provide witnesses with assurances of at least temporary anonymity, they can hardly provide assurances that the information they provide will never become public, since it may well have to be disclosed on the public record in order that justice be done.

4. Rule 10.500's complaint secrecy rule should be waived to preseve the appearance of justice.

The drafters of Rule 10.500 undoubtedly recognized that the Public Records Act's personal privacy exemption, as found inapplicable to keep personnel investigations of a public official secret in the BRV case, might not be adequate to suppress investigative reports triggered by complaints against lower judicial officers such as court commissioners. Complaints about these individuals are not necessarily confidential because they are not submitted to or investigated by the Commission on Judicial Performance, only reviewed by that body on request in case of a dismissal.

Accordingly, the drafters believed they needed a more bulletproof shield from public scrutiny, and supplied it in section (7), paragraph (f), which flatly and without qualification allows withholding of "Records related to evaluations of, complaints regarding, or investigations of justices, judges (including temporary and assigned judges), subordinate judicial officers, and applicants or candidates for judicial office."

The law elsewhere recognizes instances where normally confidential processes may be opened in the interests of public confidence.  Penal Code Section 13300 (j) states:

Notwithstanding any other law, a public prosecutor may, in response to a written request made pursuant to Section 6253 of the Government Code, provide (otherwise confidential) information from a local summary criminal history, if release of the information would enhance public safety, the interest of justice, or the public's understanding of the justice system and the person making the request declares that the request is made for a scholarly or journalistic purpose.

Even more pertinently, Penal Code Section 939.1 states: 

The grand jury acting through its foreman and the attorney general or the district  attorney may make a joint written request for public sessions of the grand jury. The request shall be filed with the superior court. If the court, or the judge thereof, finds that the subject matter of the investigation affects the general public welfare, involving the alleged corruption, misfeasance, or malfeasance in office or dereliction of duty of public officials or employees or of any person allegedly acting in conjunction or conspiracy with such officials or employees in such alleged acts, thecourt or judge may make an order directing the grand jury to conduct its investigation in a session or sessions open to the public.

If a superior court judge can order release of a personnel investigation 
report concerning
a school principal, or order public access to the
sessions of a grand juryinvestigation into
allegations of corruption or
misconduct by any public official or employee, Judge Loftus
should waive
any arguable privilege or exemption in this instance and share with the
public
the investigator's findings that led to the dismissal of the complaint
against Commissioner
Saldivar. Failure to do so displays a troubling
double standard not only in Rule 10.500 but
in Judge Loftus's application
of it
.
.