Anne Lowe

OPEN GOVERNMENT – Are yearly reports on judicial misconduct benefiting the public if key information revealing patterns is kept secret?

Bonnie Russell, a blogger on Open Salon, contends the California Commission on Judicial Performance is keeping too much information confidential for it to legitimately operate as “real protection against incompetency, misconduct or non-performance of duty on the Bench.”

In its yearly performance reports, she notes, the commission does not list the names of judges investigated, the type of court the judge presides over or the county where the judge serves.

In addition to withholding information, Russell says, the commission also closes many investigations without any disciplinary action.

Another problem is the construction of the Judicial Commission of Performance, itself.  The body designed to investigate complaints about judges, uses most of its budget to close investigations without an investigation.

Think about that.  The very investigative agency mandated to investigate judicial misconduct spends the majority of its budget for high office rents and salaries for individuals whose job it is to quickly review complaints, and close cases within forty-five days of receiving  complaint.  Without an investigation.

How tidy is that?

(Which leads me to wonder whether bonuses are available for the most cases closed in the shortest amount of time.)

Frankly, with this kind of set up it's a wonder any California judge is ever smacked.  Unless of course, a judge has embarrassed the office. Then the Commission on Judicial Performance reacts pretty fast.

Which pretty much describes San Diego Judge DeAnn Salcido. More on her tomorrow.  She's worth an entire column.

But this is pretty much how it works most states judicial commission on "performance."

So with the above background in mind, consider the 2009 report from the California Commission on Judicial Performance.  It's typical.  The report shows the Commission received  1,161 complaints about judges.

1,007 were closed "after initial review."   Bada bing.

Of the 108 complaints remaining, a preliminary investigation was opened…and 74 closed soon after. Thus, in a very short time span 1,161 complaints became 34 complaints.

Get the picture?

Fast forward – when all was said and done…3 judges were allowed to resign or retire. 3 more were "admonished."  25 received what's commonly referred to as a (stop that) "stinger" letter.   You do the math. 

Over a thousand complaints shakes out to three judges allowed to resign or retire, and three public admonishments.

How sweet is that?

Oh, one other thing.  If a case is pending – the Commission won't address the judges behavior until after the case is concluded.  This means litigants have to spring for appellate fees for more attorneys and more litigation  to overcome the lower court judge the Commission will later investigate. 

Who in their right mind would agree this benefits the public?

The reality is the Commission on Judicial Performance's lack of openness, coupled with its refusal to begin an investigation until after the case has concluded means the Commission itself puts the public at risk.

Russell urges those who are concerned to write to the Commission on Judicial Performance at 455 Golden Gate Avenue, Suite 14400, San Francisco, California 94102.