BY JOE SWEENEY AND TAMIR SUKKARY — The Commission on Judicial Performance is a little-known agency that has one of the most important jobs in California — to protect the public by investigating complaints against judges and disciplining misconduct. The commission is effectively responsible for maintaining the integrity of California’s courts.
Such an important watchdog should be transparent about its operations and should have enough teeth to deter misconduct. But its practices and discipline statistics indicate that it does neither.
The panel recently released its 2015 Annual Report revealing that it publicly disciplined just four judges out of the 1,231 complaints it reviewed. An additional 37 of these complaints resulted in a private advisory letter or private admonishment, wherein the name of the judge was withheld from the public and only a brief description of the misconduct was provided in the annual report. The commission withheld all information about the 1,190 complaints it dismissed without discipline, 90 percent of which were dismissed without an inquiry or investigation.
Court Reform LLC, a San Francisco Bay Area advocacy firm, compared the discipline rates of the commissions of California, Texas, New York and Arizona over the past 10 years and the results are troubling.
Arizona’s overall discipline rate was four times higher than California’s and its public discipline rate was five times higher. Texas investigated three times as many complaints, publicly disciplined three times as many judges, and removed six times as many judges.
New York had more than 10 times as many complaints (358) as California (34) result in judges leaving the bench with complaints pending — a likely indication that New York’s judges know their watchdog has teeth, while California’s watchdog may be asleep.
The Commission on Judicial Performance is as secretive about its operations as the CIA. In response to a public records request from First Amendment Coalition, a nonprofit that has greatly improved Californians’ access to government records, the panel refused to disclose complaints or even the number of complaints filed by judge or by county.
Its practices also prevent the public from being an informed electorate, its foremost duty. California has the lowest opposition rate in the country for judicial elections, at just 8 percent. In comparison, New York’s opposition rate is over 80 percent. The commission withholds information about misconduct from voters that may impact an election. In doing so, it takes the stance that it must separate true from false and important (public disciplines) from unimportant (private disciplines) because the public cannot be trusted to make such determinations for itself.
As Judge Damon Keith of the Sixth Circuit Court of Appeal opined, “When government begins closing its doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The framers of the First Amendment ‘did not trust any government to separate the true from the false for us.’ … They protected the people against secret government.”
The Commission on Judicial Performance is precisely the kind of secret government that Keith condemned.
The commission’s mandate is to protect the public, but its policies are contrary to that mandate. The lifelong impact of legal rulings and the effect of case law on the public are too important to risk a sleeping watchdog over the largest court system in the country. The commission should serve its public by eliminating its practices of secrecy.
This commentary appeared in the San Francisco Chronicle on Saturday, May 7, 2016. Joe Sweeney is the founder of Court Reform LLC, a Bay Area advocacy firm. Tamir Sukkary is an adjunct professor of political science at American River College, San Joaquin Delta College and Sierra College.