This article is not for the attention-span-challenged or the legalese-illiterate. It is the most rigorous legal analysis written to explain why complaints filed against judges, such as those filed with state judicial oversight agencies, should be made public. If you make it through the entire piece, you will know more about judicial oversight than 99.9% of the population and can proclaim that social media hasn't completely destroyed your attention span. Plus, you won't want to miss the giphy at the end.
Public demand for more accountability is forcing increased transparency in government, but most of our courts still operate in the dark with abuses of power, miscarriages of justice, incompetence, and misconduct running rampant, especially in county courts where there is the least transparency.
The only fix is more sunlight. Publicly disclosing complaints against judges is the easiest place to start. It should have been done long ago, but in 1960, California formed the first judge oversight agency and adopted bad confidentiality practices and the rest of the country followed their lead. It's time to amend the half-century-old rules and bring more light into the judicial branch.
This 4000-word piece lays out a brief history of judicial oversight, the main point of contention in the ongoing and unprecedented Commission on Judicial Performance v. State Auditor lawsuit, and a novel analysis of the interests to be balanced in deciding if complaints against judges should be disclosed.
1. History of Judicial Oversight
In 1960, California became the first state in the country to establish an independent judicial oversight agency, called the Commission on Judicial Qualifications. It was later renamed the Commission on Judicial Performance (CJP). Branded into the California constitution, the commission’s mandate was to enforce rigorous standards of judicial conduct and maintain public confidence in the integrity and independence of the judicial system.
The CJP performs its function by scouring complaints for potential violations of the California Code of Judicial Ethics, to which all judges are beholden, and investigates and disciplines misconduct. The CJP is not a law enforcement agency and cannot charge or prosecute crimes; however, it may refer criminal activity to law enforcement and discipline crimes as violations of ethics.
The purpose of establishing the CJP was to create “an effective and expeditious method for the removal of a judge who is unable or unwilling to perform his duties. Impeachment, recall and other existing methods are too cumbersome and expensive to be workable.” Plus, neither impeachment nor recall provided for intermediary discipline for lesser ethics violations.
By 1981, due to the strains placed on state legislatures by growing populations, all States had followed California’s lead and established their own independent judicial oversight agencies. Like California, some states codified their commissions into state constitutions, while others enacted through statute or handed control of the agency to the state’s highest court; all copied the basic structure and operating provisions of California’s commission.
The idea of establishing tough, independent oversight agencies was well-intentioned, but problems have emerged. First, the commissions were autonomous and did not have to answer to or share information with the legislative or executive branches. While the separation was meant to keep politics out of judicial discipline, it also stripped the branches of important check and balance powers over the judiciary.
Theoretically, impeachment remains a remedy. But in practice, only two judges have been impeached in California — one in 1862 and one in 1929 — because impeachment is both cumbersome and wastefully expensive, demanding the time and energies of both houses of the legislature, the Attorney General and/or special prosecutors for extended periods.
Prior to the recall of Santa Clara County Superior Court judge Aaron Persky on June 6, 2018, the only other successful recall of a judge in California occurred in 1932 when three Los Angeles County judges were recalled after being charged with appointing acquaintances to lucrative receiverships and ordering unduly large fee awards, among other alleged misconduct. The high cost and burdensome signature requirement necessary to initiate a recall makes the option untenable without a massive, well-funded, and organized effort.
Second, most commissions were permitted to write their own rules, keep complaints and records confidential, and issue private disciplines. Such policies have caused the public to cry “Star Chamber”— a closed-door agency that selectively investigates and disciplines judges. The main point of contention in Commission on Judicial Performance v. State Auditor is the CJP’s claim the agency doesn’t have to disclose complaints or investigative records to the public or even to the State Auditor in order for a performance audit to be conducted.
Third, the commissions were majority judges. California’s original commission had nine members, five of whom were judges. While some commissions, including California, have altered their makeup over time to reduce the influence of judges (California’s commission is currently three judges, two lawyers, and six laypeople), many commissions remain judge heavy, which may pose a conflict of interest. Additionally, judge and attorney members may exert influence over laypeople members overwhelmed by legal reading required of commission proceedings.
The half-century-old judicial oversight mechanism is now bowing under the strain of public demand for increased transparency and accountability in government. Since California created the nation’s mechanism, it is perhaps ironic that CJP v. State Auditor is the first major challenge to the independence of a state commission, pitting the investigative power of the state legislature against the tiny agency.
2. Commission on Judicial Performance v. State Auditor
Not by explicit legislative intent, the Commission on Judicial Performance has skirted all California public record laws, including Article 1 § 3(b) of the California Constitution, the California Public Records Act (Government Code section 6250 et. seq.), Bagley-Keane Act (Government Code section 11120 et. seq.), Ralph M. Brown Act (Government Code section 54950 et. seq.), and California Rules of Court, rule 10.500, which give Californians broad public access to government records and meetings.
Outsourcing its check and balance power over judicial officers sixty years ago, and not expressly including the constitutionally-created CJP in public records legislation, is now causing the California legislature its own oversight problems. In August 2016, the Joint Legislative Audit Committee, a bicameral and bipartisan committee, voted unanimously to audit the CJP for the first time in the CJP’s history.
In response, the CJP filed a lawsuit against State Auditor, Elaine Howle, and her office, seeking a writ of mandate to restrain the Auditor’s office from reviewing any files it deemed confidential, including complaints, investigative files, notes, memoranda, and staff recommendations to commission members regarding complaint dispositions.
Center stage in the lawsuit is Article VI, section 18(i)(1) of the California Constitution, which reads:
“The commission shall make rules for the investigation of judges. The commission may provide for the confidentiality of complaints to and investigations by the commission.”
Under this provision, the CJP may keep complaints and investigations confidential, but it is not required to do so. The CJP’s self-written Rule 102 of the Rules of the Commission on Judicial Performance, seal the agency’s files:
“Except as provided in this rule, all papers filed with and proceedings before the commission shall be confidential . . .”
The CJP could amend its rules to disclose records to the public or solely to the Auditor. But to date the agency has instead invoked its constitutional provision in tandem with Rule 102 to block access. However, under tremendous public pressure, the CJP is now considering an amendment to give the Auditor access to its records. The trial court ruled in favor of the CJP, granting a writ to protect its records, and the case is now fully briefed before the Court of Appeal.
Rather than parse the respective arguments of the CJP and Auditor in the ongoing litigation, this article instead analyzes the correctness of the CJP’s policy to withhold complaints in the first place. In order to decide if the CJP’s sealing policy deserves more scrutiny, it is appropriate to first consider the agency’s discipline statistics.
3. Complaint & Discipline Statistics
According to the CJP’s Annual Reports, the agency has issued 107 public disciplines from 18,305 complaints received from 2001 to 2017, or 0.58 percent. The commission issued private disciplines and private advisory letters in another 2.6 percent of cases, in which the judge’s name was not publicly disclosed. Ninety-seven percent of complaints were dismissed without action. Approximately 90 percent were dismissed with no inquiry or investigation.
CJP Statistics 2001-2017
Thus, the CJP classifies only 1 in 200 complaints to contain information that justifies public disclosure. Approximately 80 percent of issued disciplines are either private admonishments or private advisory letters — a judge violated the Code of Judicial Ethics but the CJP determined the misconduct was not significant enough to warrant public disclosure.
The public has decried the CJP for low investigation, discipline, and disclosure rates, while judges complain of harshness and lack of due process. With problems alleged by both sides, a thorough audit would likely provide needed conclusions.
California’s 2,000 judges oversee more than six million cases annually and decide matters of the utmost importance, from the interpretation of public policy to issuing sentences in criminal cases to determining child custody in family law and juvenile cases. The public has a strong interest in ensuring its judges are performing their duties with the highest integrity and are exercising their broad discretion without bias or ulterior motive.
Judges are held to high ethical standards because when bias, prejudice, or misconduct exist in a judicial decision, it violates an individual’s rights to equal protection and due process. Acting with bias or prejudice is a violation of ethics. Because complaints may expose bias, prejudice, and other types of misconduct, the government should have a compelling interest to justify withholding complaints, details of misconduct subject of private disciplines, and even allegations of misconduct contained in dismissed complaints.
What interests might justify confidentiality and do they outweigh those countervailing?
4. U.S. Department of Justice Justification for Confidentiality: Privacy
In a 2016 lawsuit, American Immigration Lawyers Association v. Department of Justice,(hereafter AILA), the D.C. Circuit Court performed a novel legal analysis of the competing interests in disclosing judicial complaints.
AILA filed a Freedom of Information Act request to the Executive Office for Immigration Review, a division of the Department of Justice, asking for complaints filed against federal immigration judges. The DOJ responded by producing complaints with judges’ names and other information redacted. AILA filed suit demanding unredacted production on the basis it would provide information of public interest, including whether a specific judge had been accused of bias or engaged in other misconduct prejudicial to the administration of justice, and the frequency of that alleged misconduct. In defense, the DOJ argued judges had a privacy interest in redacting complaints that outweighed public disclosure.
In balancing, the court found that the public’s interest in learning about the actions of specific judges would prevail over privacy interests in most circumstances because the information would “enlighten the public about ‘what their government is up to.’" The court wrote, in pertinent part:
"The interests on both sides of the . . . balancing test might vary in substantial measure with respect to different immigration judges (and perhaps different complaints) . . . [T]he public interest likely would be more pronounced in the case of a sitting immigration judge, who continues to make decisions as an employee of the Department of Justice, than in the case of a former judge. Additionally, disclosing the name of an immigration judge subject to numerous and/or serious substantiated complaints might shed considerable light on matters of public interest, whereas disclosing the name of an immigration judge subject to a single, unsubstantiated complaint might not. For instance, in the case of a sitting judge with a substantial number of serious and substantiated complaints, knowledge of her identity would enable the public to examine her official actions (including decisions), both past and future, and to assess any possible implications of those complaints for the conduct of her official responsibilities.”
The circuit court reasoned there was a public interest in examining the actions of individual judges and assessing the implications of their conduct. Not all judges are equally professional, competent, and unbiased. Scrutinizing the conduct of individual judges would enable the public to correct the behavior of jurists who acted outside the bounds of ethics. Disclosure would also credit judges with clean records and ensure the best traverse the ranks of the judiciary.
But even the circuit court’s logic was flawed with regard to possible separation of judges and complaints into different categories when deciding disclosure — retired versus sitting; multiple, substantiated complaints versus a single, frivolous complaint, etc.
First, divvying up complaints into categories involving number, retirement status, merit, importance, etc., would create a legal nightmare, with judges jockeying to have their complaints categorized to evade public scrutiny.
Second, complaints and their dispositions would provide valuable information about the efficacy of the judicial grievance process. In this instance, the Office of the Chief Immigration Judge decides complaints — the judge presiding over the immigration bench decides if her colleagues should be disciplined. It is bad government to allow decision makers to perform important jobs in darkness where conflicts of interest are present and few safeguards exist to protect against the undue influence of those interests.
The U.S. Supreme Court has gone so far as to declare a qualified First Amendment right of access to criminal court proceedings, in part, because it “gave assurance that the proceedings were conducted fairly to all concerned,” and provided an “‘opportunity both for understanding the system in general and its workings in a particular case’ thereby enhancing public confidence in the judicial system.”
Just as the fairness of court proceedings are enhanced by public observation, so too would be the judicial complaint resolution process. California courts have long recognized the role that public access plays in improving the judiciary. There would be no reason to suspect disclosure of decided complaints and their dispositions would not similarly improve the mechanism of judicial oversight. The CJP’s confidentiality policies all but eradicate the public’s primary tool for analyzing and making improvements to the oversight system.
California has an even more compelling interest in disclosure of complaints than in AILA v. DOJ because, unlike federal immigration judges, California judges are subject to reelection. The CJP’s policy of withholding information relevant to judicial elections interferes with the public’s foremost duty — to be an informed electorate and to wield its power to remove wayward judges from the bench where necessary.
Californians intended for judicial reelections to balance accountability and independence. Complaints contain allegations of misconduct and their disclosure would not compromise judicial independence unless clear patterns of bias or other misconduct emerged over time. In that case, intervention would be needed, not continued independence.
5. CJP Justification for Confidentiality: Unfairness
The CJP generally cites two reasons for keeping records confidential: (1) it would be unfair to judges to disclose complaints that may be unwarranted, and (2) confidentiality prevents retaliation by the complained judge.
The 1960 ballot proposition creating the CJP established the “unfairness” doctrine:
“To avoid the unfairness of publicly disclosing complaints of merely disgruntled litigants, proceedings before the commission will not be public, unless and until it recommends to the Supreme Court the removal or retirement of the judge.”
In Mosk v. Superior Court (1979) 25 Cal.3d 474, a case involving a motion to quash a subpoena on a California Supreme Court justice ordered to appear as a witness in a public hearing before the CJP in a case involving alleged misconduct of other Supreme Court justices, the California Supreme Court opined on the unfairness doctrine in quashing the subpoena:
“Confidentiality protects judges from injury which might result from publication of unexamined and unwarranted complaints by disgruntled litigants or their attorneys, or by political adversaries. Confidentiality of investigations by the Commission preserves confidence in the judiciary as an institution by avoiding premature announcement of groundless claims of judicial misconduct or disability.”
Preserving the confidentiality of ongoing investigations is justified, standard practice among virtually all government agencies. But applying the unfairness doctrine to adjudicated complaints deserves more scrutiny.
On its face, “unfairness” is not a cognizable government interest. In AILA, the U.S. Department of Justice didn’t even present such an argument to justify the redaction of complaints against immigration judges because they would have been laughed out of federal court.
In a May 2017 hearing before Senate Budget Subcommittee 5, Richard Simpson, a retired political staffer and then-public member of the CJP, further explained the unfairness argument, stating:
"We have judges who have received complaints that were baseless . . . if those pursuant to a public records request would become public . . . judges who were running for reelection would have unfounded allegations available to, out in the public.”
CJP Chair & Judge Member Erica Yew @ 4:15
CJP Public Member Richard Simpson @ 7:30
CJP Director Victoria Henley @ 10:20
Simpson implied that disclosing complaints might unfairly influence judicial reelections, thereby harming the independence of the judiciary. But this justification is misplaced for a few reasons.
First, it implies the public cannot be trusted to distinguish between baseless and meritorious complaints. As the late Judge Damon Keith of the Sixth Circuit Court of Appeals opined in finding unconstitutional the government’s blanket closure of immigration hearings due to national security interests, “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.’”
The public should be allowed to sort information for itself. Judicial complaints do not contain information of national security import; rather, they contain allegations of misconduct by public officials. In issuing private disciplines, wherein actual misconduct was found by the CJP, the agency is sealing information about judges’ actual violations of ethics. Such information is worthy of public disclosure regardless of the severity of the offense.
Even dismissed complaints may still contain information of public interest. For example, one complaint might not demonstrate bias against a particular class of person, but ten might. Disclosure allows construction of a record.
Second, there is a distinction between ongoing investigations and adjudicated complaints. Because the commission will have acted upon complaints it deemed worthy of investigation and dismissed those without merit, the potential injury caused by disclosing “unexamined and unwarranted complaints of disgruntled litigants or their attorneys” would be minimal. The public could observe why the complaint was dismissed and investigations were closed.
There is a precedent for publicly disclosing complaints. Since 2006, Arizona’s commission has provided online, public access to dismissed complaints, orders of dismissal with comments, and the entire record for public disciplines.
The change was made by the Arizona Supreme Court, which writes the state commission’s rules, after an angry district attorney filed a petition demanding the commission publicly disclose complaints because it was sweeping misconduct under the rug. Without issuing an opinion on the matter, the Arizona Supreme Court amended the rules to require adjudicated complaints to be made publicly available, albeit with judges’ names redacted.
Third, the unfairness argument implies it is the CJP’s job to ensure “fair” judicial elections. But that is beyond the scope of the agency. Its mandate is to protect the public against bad judges and to preserve public confidence in the judiciary. Transparency increases confidence because then the public can see what its government is up to.
Judges are public officials and must have a tolerance for public scrutiny. In a 1999 CJP case involving disclosure of votes of commission members in disciplinary actions, Recorder v. Commission on Judicial Performance, the Court of Appeal ordered disclosure, writing:
“[W]e fail to see the merit of a system in which public officials, sitting in judgment of other public officials regarding charges of official misconduct, are allowed to hide behind a veil of secrecy when making the “tough calls” necessary to any adjudicatory regime. A certain amount of courage and a “thick skin” are essential attributes for anyone who purports to perform “judicial” functions. We should expect, and accept, no less from members of the commission.” Recorder at 280.
The same could be said of judges, who are even more public of figures than CJP members. If the CJP is weighing the maintenance of a judge’s tidy reputation against the public interest of having access to information about their job performance, the former must give way.
6. CJP Justification for Confidentiality: Retaliation
In Mosk, the California Supreme Court also raised the CJP’s retaliation argument, writing:
“The confidentiality of investigations and hearings by the Commission is based on sound public policy. Confidentiality encourages the filing of complaints and the willing participation of citizens and witnesses by providing protection against possible retaliation or recrimination. [Citations.]”
Here again, there is a distinction between ongoing investigations and adjudicated complaints. In the aforementioned May 2017 Senate hearing, then-CJP Chair, Judge Erica Yew further expounded on the retaliation defense, stating that judges would retaliate against court staff who had filed a complaint, and then provided this reason for why that was bad:
"Because if a clerk doesn’t have a judge, they don’t have a place to put their purse, they don’t have a place to have lunch, they’re bereft of a lot of things. We don’t want to have to violate the confidentiality of those complainants…”
Presumably, Judge Yew meant that a judge would bar a clerk from keeping her purse or having lunch in judges’ chambers.
Judges are required to uphold a higher standard of conduct than the rest of us. It is surprising that Yew, a judge herself, would even raise such an argument as a policy defense. Vindictive judges should be further disciplined or removed from the bench and court staff would be protected under whistleblower laws. It is a separate violation of ethics for a judge to retaliate:
“A judge shall not retaliate, directly or indirectly, against a person known or suspected to have assisted or cooperated with an investigation of a judge or a lawyer.”
Possible retaliation does not justify shielding judges from public scrutiny and it rewards bad behavior. It would be akin to saying "Officer, if you give me a ticket, then I'm going to get really mad and speed again." In fact, if complaints were disclosed, judges would be less likely to retaliate because that retaliation might also become public in a subsequent complaint.
Further, according to the CJP’s annual reports, only 1 percent of complaints arise from judges or court staff. Not being able to store a purse or have lunch in judges’ chambers is an absurd justification for confidentiality and a policy should not be written for the 1 percent.
In Recorder, the Court of Appeal ordered the CJP to disclose votes of Commission members when public disciplines were issued, reasoning:
"[T]he primary purposes of Proposition 190 were to eliminate secrecy in the commission's formal disciplinary proceedings and to ensure public accountability of the commission for its disciplinary determinations. The proponents of Proposition 190 could not have been more clear about this, as stated in their ballot argument: 'Proposition 190 is an important and timely reform measure. Judges are public servants and play a critical role in our society. The public must have confidence and trust in those holding judicial office...CALIFORNIA MUST ELIMINATE SECRECY AND ENSURE INTEGRITY IN THE DISCIPLINARY PROCESS . . ."' (Uppercase and italics in original.)
The same logic would apply to the disclosure of adjudicated complaints. Privacy, unfairness, and retaliation arguments must give way to the public interest in having information that is or even might be, relevant to the job performance of public officials, especially when it is the declared intent of the People to check the performance of jurists through judicial reelections.
It is shameful that the judiciary is using faulty and legally invalid justifications to shield judges from scrutiny, prioritizing the maintenance of tidy reputations over tremendous public interests in disclosure. California’s commission could greatly improve the mechanism of judicial oversight by disclosing complaints. If it did so, the rest of the country would likely follow its lead, again.
 1960 Ballot Proposition No. 10. Administration of Justice. Sen. Const. Amend. No. 14 (1959-1960 Reg. Sess.)
 Commission on Judicial Performance Homepage. https://cjp.ca.gov
 1960 Ballot Proposition No. 10, supra note, 1
 Jonathan Abel, Testing Three Commonsense Intuitions About Judicial Conduct Commissions, (2012) 65 Stan. L. R.1021.
 Wilbank J. Roche. Judicial Discipline in California: A Critical Re-Evaluation. Loyola of Los Angeles Law Review. 12-1-1976.
 See e.g. Whitney L. Clegg, California Takes Step towards Improving Judicial Accountability, Reveal News, (Aug. 11, 2016)
 Cal. Const. art. VI, Section 18(i)(1).
 Rules Comm. Jud. Perform., Rule 102
 See, e.g., Comm. Jud. Perform., Annual Reports, (2001-20017) available at https://cjp.ca.gov/annual_reports/
 See, e.g., California Courts, Court Statistics Report, http://www.courts.ca.gov/13421.htm
 Canon 3(B)(5) of the California Code of Judicial Ethics.
 American Immigration Lawyers Association v. Executive Office for Immigration Review, et al., (D.C.Cir. 2016) No. 1:13-cv-00840
 AILA, (D.C. Cir. 2016) No. 1:13-cv-00840.
 Richmond Newspapers, Inc. v. Virginia(1980) 448 U.S. 555, at p. 569.
 Id.at p. 572.
 See e.g. San Bernardino County Dept. of Public Social Services v. Superior Court (1991) 232 Cal.App.3d 188
 California Constitution Center, What Does California’s Experience with Recall of Judges Teach Us, SCOCAblog (Nov. 10, 2016) available at http://scocablog.com/what-does-californias-experience-with-recall-of-judges-teach-us/
 1960 Ballot Proposition No. 10, supranote, 1
 Hearings before Sen. Budget Subcom. 5 on Corrections, Public Safety and the Judiciary, May 8, 2017, available at http://senate.ca.gov/media-archive?title=&startdate=05%2F01%2F2017&enddate=05%2F31%2F2017
 Arizona Rules of the Commission on Judicial Conduct, rule 9(a)(1) and (2) available at http://www.azcourts.gov/azcjc/Public-Decisions[§ 2:21 California Style Manual]
 Recorder v. Commission on Judicial Performance, (1999) at 274
 McCartney v. Commission on Judicial Qualifications,(1974) at 521; Landmark Communications, Inc. v. Virginia, (1978)
 Hearings before Sen. Budget Subcom. 5 on Corrections, Public Safety and the Judiciary, May 8, 2017, available at http://senate.ca.gov/media-archive?title=&startdate=05%2F01%2F2017&enddate=05%2F31%2F2017
 Canon 3(D)(5) of the California Code of Judicial Ethics.
 Recorder, (1999) at 274.