Why a Spotlight must be put on the Commission on …static1.squarespace.com/static/5633b19ae4b04e9edc2f2c80/...The Commission on Judicial Performance operates in secrecy because it

Why a Spotlight must be put on the Commission on Judicial Performance

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EXECUTIVE SUMMARY

Judicial misconduct is one of the most important, underinvestigated and underreported issues affecting Californians. The Commission on Judicial Performance is the agency responsible for investigating and disciplining judicial misconduct in California. When compared to the oversight commissions of other states, California’s commission is a severe, negative outlier in investigating and disciplining judicial misconduct and making efficient use of public funds. This report compares California’s commission to those of Arizona, Texas, and New York.

California v. Arizona (past 10 years)

Budget (2015)

No. of Staff (2015)

Avg. number of complaints per year

Avg. number of total disciplines per year

Avg. number of public disciplines per year

Avg. rate of total discipline

California $4,334,000 20 1082 36 6 3.4%

Arizona $522,300 4.5 346 47 10 13.6%

California v. Texas and New York (past 10 years) No. of

Staff (2014)

Budget (2014)

Complaints ‘05’14

Prelim. Inquiry

Prelim. or Full Investig’ns

Public Discipline (Censure, Admonish, Removal/ Suspension)

Resign / Retire / Left office for other reasons with complaints pending

State Pop.

California 20 $4.3m 10,821 754 712 67 (6 removal)

34 38.8 million

Texas 13 $933k 10,964 2,629 2,636 168 (39 removal)

50 resign (retire or other reasons not reported)

26.9 million

New York

45 $5.5m 17,719 4,318 2,139 221 (23 removal)

358 19.7 million

The Commission on Judicial Performance operates in secrecy because it is exempt from California Constitution Article I, Section 3(b), the California Public Records Act, Ralph M. Brown Act, BagleyKeene Act, and California Rules of Court, rule 10.500. The commission refused to produce any records in response to a records request from First Amendment Coalition even basic staff, salary, and budget information. The request and response are attached herein. The Commission on Judicial Performance resides in the International Waters of public disclosure laws. The budget of California’s judicial branch is $3.8 billion, and its 2,200 judicial officers dispose of approximately 7 million cases annually. The disposition of each of these cases has a direct,


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lifelong impact on the persons involved. A strong judicial oversight agency is of paramount public importance because bad judges cause innocent people to be found guilty, guilty people to be found innocent, issue unfair and inconsistent sentences, damage the lives of children and families, erode the public trust, and waste millions of taxpayer dollars. Californians should have confidence in their courts, but a 2014 study found that of all 50 states California has the highest level of perceived illegal corruption in its judicial branch. The data compiled in this report suggest that the Commission on Judicial Performance severely underinvestigates and underdisciplines judicial misconduct and misappropriates public funds. Potentially hundreds of unfit judges currently sit on California’s benches whose removal, resignation, or retirement would have been caused by the commissions of other states. Given the tremendous disparities in investigation rates, discipline rates, and budget efficiencies between California’s commission and those of other states, typically 200300% differences across the board, the integrity of the Commission on Judicial Performance should be questioned. Oversight of the largest judiciary in the Western world cannot be trusted to a small agency that is an outlier in judicial discipline and subject to minimal public disclosure laws. Californians urge the Legislature to order an audit of the Commission on Judicial Performance and to require increased transparency and accountability.


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TABLE OF CONTENTS

Page

1. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. COMPARISON OF THE COMMISSIONS OF CALIFORNIA, ARIZONA, NEW YORK, AND TEXAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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A. California v. Arizona (past 10 years) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. California v. New York and Texas (past 10 years) . . . . . . . . . . . . . . . . . . . . 9

3. THE PERFORMANCE OF THE COMMISSION ON JUDICIAL PERFORMANCE HAS STEADILY DEGRADED OVER THE PAST 25 YEARS. THE COMMISSION NOW FAILS TO PROTECT THE PUBLIC AGAINST JUDICIAL MISCONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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A. The number of complaints has tripled since the 1980s, yet the commission meets less frequently. Commission members now review complaints for approximately 2 minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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B. Inquiry and discipline rates have dropped drastically since the 1980s . . . . . . 12

C. The Commission on Judicial Performance may have adopted underground complaint review practices, which may constitute improper governmental activity under Government Code § 8547 et. seq . . . . . . . . . . . . . . . . . . . . . .

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D. The Commission on Judicial Performance shares a building with the Courts, creating the appearance of impropriety . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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4. THE COMMISSION ON JUDICIAL PERFORMANCE OPERATES IN SECRET AND REFUSES TO COMPLY WITH PUBLIC RECORDS REQUESTS . . . . . . .

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A. The Commission on Judicial Performance refuses to produce any records to the public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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B. The numbers reported by the Commission on Judicial Performance don’t add up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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5. A STRONG JUDICIAL OVERSIGHT AGENCY IS NECESSARY TO PROTECT THE PUBLIC AGAINST JUDICIAL MISCONDUCT . . . . . . . . . . . . .

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A. The Commission on Judicial Performance is the only real deterrent against judicial misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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i. Impeachment and conviction of judicial officers does not occur . . . . . 18

ii. Recall elections and elections are not a practical mechanism to remove bad judicial officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

iii. The judicial branch and its officers do not comply with laws that

protect the public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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iv. Therefore, the Commission on Judicial Performance provides the only real protection against judicial misconduct . . . . . . . . . . . . . . . . . .

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6. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

APPENDIX The most relevant pages of discipline data from state commissions are included in the appendix. Complete Annual Reports and other supporting documents can be obtained from the state commission websites at::

http://www.azcourts.gov/azcjc/PublicDecisions (all Arizona complaints 2006present) http://www.azcourts.gov/azcjc/AnnualReports (Arizona Annual Reports 1971 present) http://www.scjc.state.ny.us/Publications/AnnualReports.htm (NY Annual Reports 1975 present) http://www.scjc.state.tx.us/reports.asp (Texas Annual Reports 2001 present) http://cjp.ca.gov/annual_reports.htm (CA Annual Reports 1983 present)

California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CA Commission on Judicial Performance, Statistics by Year (20052014). Generated from Commission on Judicial Performance 2014 Annual Report, page 14 Summary of complaint statistics 20052014.

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Commission on Judicial Performance 20142015 Actual Expenditures (http://www.cjp.ca.gov/res/docs/appendix/Budget_20142015.pdf)

Organizational Chart (http://www.cjp.ca.gov/res/docs/appendix/Current_Staff_Org_Chart.pdf)

Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AZ Commission on Judicial Conduct Statistics by Year (20062015). Generated from complaint data available at: http://www.azcourts.gov/azcjc/PublicDecisions (all Arizona complaints 2006present)

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Arizona Commission on Judicial Conduct, 2015 Annual Report, pages 1617, budget and staff information (AZ Annual Reports can be found at the link above)

New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . NY State Commission on Judicial Conduct Statistics by Year (20052014). Generated from Annual Reports 20062015 (reporting years 20052014). Select supporting pages from Annual Reports included. (full Annual Reports can be found at the link above)

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Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TX State Commission on Judicial Conduct Statistics by Year (20052014). Generated from Annual Reports 20052014. Select supporting pages from Annual Reports included (full Annual Reports can be found at the link above)

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Public Records Request from ROCK Attorneys at Law and First Amendment Coalition to Commission on Judicial Performance . . . . . . . . . . . . . . . . . . . . . . . . . .

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Response to Public Records Request from Commission on Judicial Performance 76


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1. PURPOSE This report is intended to alert the Legislature, media, and Public to troubling information regarding the Commission on Judicial Performance California’s sole judicial oversight agency. Supporting documents are included in the Appendix and other documents are referenced by footnote. The information contained in this report suggests that the Commission on Judicial Performance is underinvestigating and underdisciplining judicial misconduct and misappropriating public funds. This report compares the data and policies of the commissions of California, Arizona, Texas, and New York. Additionally, important background information, law, and legislative history are included for context and to demonstrate the gravity of these matters to the Public. It is hoped that this report will catalyze one or more of the following actions:

1. Inquiry and investigation into the Commission on Judicial Performance by the media;

2. Formal audit by the State Auditor’s Office to determine if the commission is engaging in misconduct and/or misappropriation of public funds;

3. Investigation of commission policies and operating procedures by the Office of

Administrative Law to determine if any commission rules, policies, and operating procedures constitute an Underground Regulation;

4. Legislative action to improve the transparency and accountability of the commission:

a. Publicly post: i. judicial complaints upon disposition; ii. responses from judges; iii. votes of commission members to dismiss or investigate a complaint; iv. orders of dismissal with a brief explanation for dismissal (e.g. frivolous,

legal error not rising to the level of misconduct, etc.) b. Eliminate private advisory letters and private admonishments.

5. Move the commission offices to a different location so the commission does not share a

building with the Judicial Council, Administrative Office of the Courts (Judicial Council staff), California Supreme Court, the First District Court of Appeal (five Divisions), and the Office of the Attorney General.


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2. COMPARISON OF THE COMMISSIONS OF CALIFORNIA, ARIZONA, NEW YORK, AND TEXAS

In 1960, California became the leader in judicial accountability when it established by Constitutional amendment the first judicial oversight agency the Commission on Judicial Qualifications (later renamed the Commission on Judicial Performance). The Constitutional mandate, as stated by its drafters, Senators Edward J. Regan and Joseph A. Rattigan, was to “assure real protection against incompetency, misconduct or nonperformance of duty on the Bench." Over subsequent decades all 50 states would establish similar judicial oversight commissions, largely implementing policies similar to those of California. Over time, California has fallen behind its peers in judicial accountability. In fact, the Center for Public Integrity a highly regarded nonpartisan, nonprofit organization, and winner of the 2014 Pulitzer Prize for Investigative Reporting published an indepth study assessing the systems in place to deter corruption and promote transparency in state governments. While California’s 1

executive and legislative branches ranked highly, pushing the state into 2nd place overall, California received an “F” in the category of “Judicial Accountability. ”

California’s failure to provide adequate judicial oversight is not merely theoretical. Comparing the rates of investigation and discipline by California’s commission with those of its neighbor, Arizona, and the next two most populous states, Texas and New York, is alarming.

A. California v. Arizona (past 10 years)

Budget (2015)

No. of Staff (2014)

Avg. number of complaints per year

Avg. number of total disciplines per year

Avg. number of public disciplines per year

Avg. rate of total discipline

California $4,334,000 20 1082 36 6 3.3%

Arizona $522,300 4.5 346 47 10.4 13.6% California complaint and discipline statistics taken from 20052014 as reported in CJP’s 2014 Annual Report, p.14:

http://cjp.ca.gov/res/docs/annual_reports/2014_Annual_Report.pdf California budget and staff information taken from CJP website, Organization and Budget page:

http://cjp.ca.gov/organiztion_budget.htm. Arizona complaint and discipline statistics taken from 20062015 as reported on their commission website by year:

http://www.azcourts.gov/azcjc/PublicDecisions. Arizona budget and staff information taken from 2014 Annual Report, p13:

http://www.azcourts.gov/Portals/137/2014%20CJC%20Annual%20Report.pdf

Though California’s commission received three times more complaints, it disciplined fewer judges than Arizona. Arizona’s commission is more transparent and publicly discloses redacted dismissed complaints, orders of dismissal with a brief explanation, and the full record for public

1 http://www.publicintegrity.org/2015/11/09/18342/californiagetscgrade2015stateintegrityinvestigation Court Reform LLC CourtReformLLC.com

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disciplines: unredacted complaint, response from judicial officer, written communications from the commission, and the commission’s Order, which includes a summary of facts. California’s 2

commission does not disclose complaints, orders of dismissal, or explanations for dismissal. For public admonishments and censures, California’s commission discloses a Decision and Order, which includes the commission’s interpretation of the facts and conclusions therefrom, which are often stipulated to by the disciplined judicial officer. When formal proceedings are initiated 3

to remove a judicial officer, only the “notice of charges, the answer, and all subsequent papers and proceedings” are made public. 4

B. California v. New York and Texas (past 10 years)

One might suspect that Arizona is an outlier, or that the smaller population (approximately 6.7 million) contributes to better oversight and higher rates of judicial discipline. But a comparison with the next two most populous states, New York and Texas, dispels any such suspicion. The Annual Reports of California, New York, and Texas during the tenyear period from 2005 through 2014 show that California’s commission once again pales in comparison.

20052014 No. of Staff (2014)

Budget (2014)

Complaints ‘05’14

Prelim. Inquiry

Prelim.. or Full Investig’ns

Public Discipline (Censure, Admonish, Removal/ Suspension)

Resign / Retire / Left office for other reasons with complaints pending

State Pop.

California 20 $4.3m 10,821 754 712 67 (6 removal)

34 38.8 million

Texas 13 $933k 10,965 2,502 2,636 168 (39 removal)

50 resign (retire or other reasons not reported)

26.9 million

New York 45 $5.5m 17,719 4,318 2,139 221 (23 removal)

358 19.7 million

California complaint and discipline statistics taken from 20052014 as reported in CJP’s 2014 Annual Report, p.14:

http://cjp.ca.gov/res/docs/annual_reports/2014_Annual_Report.pdf California budget and staff information taken from commission website, Organization and Budget page:

http://cjp.ca.gov/organiztion_budget.htm. New York complaint and discipline statistics taken from 20052014 as reported in their Annual Reports, accessible here:

http://www.scjc.state.ny.us/Publications/AnnualReports.htm New York budget and staff information taken from their website: http://www.scjc.state.ny.us/General.Information/budget.htm and

http://www.scjc.state.ny.us/General.Information/Gen.Info.Pages/staff.htm Texas complaint and discipline statistics taken from 20052014 as reported in their Annual Reports, accessible here:

http://www.scjc.state.tx.us/reports.asp

2 http://www.azcourts.gov/azcjc/PublicDecisions 3 http://cjp.ca.gov/desisions_by_judges.htm 4 Cal. Const. Art. VI, Section 18(i)(2)(j).


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Texas budget and staff information taken from their website at http://www.scjc.state.tx.us/staff.asp and Legislative Appropriations Request (2014 est., Exhibt 2A) http://www.scjc.state.tx.us/pdf/SCJCLAR.pdf

State population from U.S. Census Bureau, 2014 Estimate

The Texas commission processes approximately the same number of complaints as California, and the New York commission processes more. California publicly disciplines at a fraction the rate of either Texas or New York. Despite the fact that the population of California is 50% more than Texas and nearly double that of New York, both Texas and New York have several times the number of resignations, retirements, and removals per year. Texas publicly disciplined 3 times as many judges and removed 6 times as many judges as California. New York publicly disciplined 4 times as many judges, removed 4 times as many judges, and had 10 times as many judges resign, retire, or leave office for other reasons while complaints were pending. Supported by the data above, an explanation for the lower rates of discipline, resignation, and removal is that California’s commission conducts a fraction of the number of inquiries and investigations, which also results in a troubling cost and job performance comparison between the commissions: 2014 Budget No.

of Staff

Average cost per staff member

No. of Prelim. Inquiries

No. of Investigations

Average cost per inquiry or investigation

No. of inquiries or investigations per staff member per year

Texas $908,623 13 $69,894 260 331 $1,537 45

New York* $5,484,000 45 $121,867 499 145 $8,516 14

California $4,334,000 20 $216,700 84 101 $23,427 9

*The New York Commission on Judicial Conduct maintains 3 separate commission offices in New York City, Albany, and Rochester The amount of work performed per staff member, or per dollar, by California’s commission is not remotely comparable to the commissions of New York or Texas. Further, the New York commission’s budget includes expenses for double the number of staff members and for maintaining three separate offices in New York City, Albany, and Rochester. The above analysis also confirms a conclusion from a 2012 Stanford Law Review report comparing data from the judicial oversight commissions of 35 states: increased commission budgets result in increased discipline of judges, with California being a negative outlier . 5 Thus, the above data suggests that the Commission on Judicial Performance severely underinvestigates and underdisciplines judicial misconduct, misappropriate funds, and fails to protect the public from judicial misconduct.

5 http://www.stanfordlawreview.org/sites/default/files/Abel64StanLRev1021.pdf Court Reform LLC CourtReformLLC.com

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3. THE PERFORMANCE OF THE COMMISSION ON JUDICIAL PERFORMANCE HAS STEADILY DEGRADED OVER THE PAST 25 YEARS. THE COMMISSION NOW FAILS TO PROTECT THE PUBLIC AGAINST JUDICIAL MISCONDUCT.

A. The number of complaints filed has tripled since the 1980s, yet the commission meets

less frequently. Commission members now review complaints for an average of

approximately 2 minutes.

The commission consists of 11 unpaid appointees who are judges, attorneys, and citizens employed fulltime elsewhere. The commission members meet seven times per year to dispose 6

of complaints. The commission has an annual budget of approximately $4.3 million and 7

employs a support staff of approximately 22 administrators, attorneys, investigators, clerks, and secretaries. 8

The commission receives approximately 1,300 complaints per year. Thus, on average 187 9

complaints are disposed of at each of the commission’s seven 1day meetings per year. If the commission spends 8 hours reviewing complaints, each complaint receives an average of 2 minutes 34 seconds of review. It is not plausible that commission members can read most complaints in such a short period of time since many contain extensive documentation such as court pleadings and transcripts. It is even more implausible that commission members can have a meaningful discussion about the complaint with other members and make an informed decision. Historically, the commission has spent more time reviewing complaints. For example, in 1983, the first year Annual Reports are available, the commission met for a total of “6 oneday and 2 twoday sessions” to resolve 351 complaints. This is 10 days total to resolve 351 complaints. 10

Assuming 8 hours of review per day, each complaint received on average 13 minutes 40 seconds of review. The commissions of other states spend much more time reviewing complaints. For example, Alaska’s commission meets quarterly to resolve 3070 complaints per year. Texas commission 11

members, who receive approximately the same number of complaints as California, meet “three days a week, every other month,” , or 18 days total. The New Hampshire Judicial Conduct 12 13

6 http://cjp.ca.gov/Commission_Members.htm 7 http://cjp.ca.gov/Meeting_dates.htm 8 State of California, Budget Change Proposal DF46 (Rev 08/15) http://web1a.esd.dof.ca.gov/Documents/bcp/1617/FY1617_ORG0280_BCP328.pdf 9 http://cjp.ca.gov/res/docs/annual_reports/2014_Annual_Report.pdf 10 1983 Annual Report. Commission on Judicial Performance. http://cjp.ca.gov/res/docs/annual_reports/1983_Annual_Report.pdf 11 https://ballotpedia.org/Alaska_Commission_on_Judicial_Conduct#Complaint_statistics 12 http://www.statesman.com/news/news/specialreports/texasjudgesmisdeedsoftenkeptsecretbyovers1/nRm2Z/ 13 2015 Annual Report. Texas Commission on Judicial Conduct. http://www.scjc.state.tx.us/pdf/rpts/ARFY15.pdf


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Committee meets 12 or more days per year to resolve approximately 7080 complaints annually; the committee indicates that 10 complaints is a large number to review in a meeting:

“The Judicial Conduct Committee has eleven members, consisting of judges, lawyers, and public representatives, and meets twelve or more times each year. All of the members read all of the reports of alleged judicial misconduct that are filed with the Committee. However, because each meeting agenda may contain as many as ten or more reports and since each report can be lengthy and can include many pages of attachments, the Committee asks a reporter to fill out a summary “Cover Sheet.” This Cover Sheet enables Committee members to keep in mind, as they read, who is filing the report of judicial misconduct, what the report is all about, and what kind of supporting evidence they should be looking for. The Committee feels that this summarizing and focusing of the allegations can also be helpful to the reporter.” 14

Additionally, the New Hampshire commission instructs the complainant (the “reporter”) to prepare a summary cover sheet for the commission, not the commission staff:

“Process: Attached is a Report of Alleged Judicial Misconduct Cover Sheet, which we ask that you fill out and return to the Committee in order that it may be considered by the Committee along with your report. Again, this summary information will not be a substitute for your report, which will be read and considered in its entirety by each Committee member. The Cover Sheet is simply designed to enable the members to read each report, no matter how complicated and detailed, while looking for the instances of judicial misconduct (and for the supporting evidence) that are being alleged.” 15

B. Inquiry and discipline rates have dropped drastically since the 1980s.

The rates of inquiry and discipline by California’s commission have been halved since the 1980s. Because 1984 was the first year private advisory letters were implemented as a form of discipline, a look at the 5year periods from 19841988 and the most recent 5year period, 20102014, serve as a useful comparison:

Complaints Inquiries / Investigations

Disciplines / Resign / Retire

Percent Inquiry / Investigation

Percent Discipline / Resign / Retire

19841988 2,421 548 192 22.6% 7.9%

20102014 5,778 695 215 12.0% 3.7%

Data from 1988 Annual Report, Appendix 2; 2014 Annual Report, page 14. 16

14 http://www.courts.state.nh.us/committees/judconductcomm/docs/ADMNJCCReportofAllegedJudicialMisconductProcedure.PDF 15 http://www.courts.state.nh.us/committees/judconductcomm/docs/ADMNJCCReportofAllegedJudicialMisconductProcedure.PDF 16 2014 Annual Report. Commission on Judicial Performance.


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Despite an increase of 138% in the number of complaints between the periods, the number of disciplines increased by just 12%. According to Commission Rule 109, a complaint can only be dismissed if it is deemed “obviously unfounded or frivolous.” In 2014, the commission dismissed 1,039 of 1,174 complaints without a staff inquiry or preliminary investigation. Thus, the commission deemed 17

that 88.5% of all complaints were “obviously unfounded or frivolous.” Such a high percentage is troubling and, as detailed above, departs from California’s historical dismissal rates by a factor of 2, and from other states by a factor of 23.

C. The Commission on Judicial Performance may have adopted underground complaint

review practices, which may constitute improper governmental activity under

Government Code § 8547 et seq.

The commission must have adopted another process to dispose of complaints so rapidly. This is apparently the case. As described by commission member Honorable Ignazio Ruvolo in a speech to the Contra Costa County Bar Association in January 2015, “we have a staff to help us … we have a staff of about 20 lawyers who do the investigation and due diligence whenever we get complaints…” He further describes that “there’s a memo we get on each one of those cases…” The commission members then vote on whether or not to dismiss a complaint, presumably based on the content of the staffprepared “memo.” 18

If true, the commission staff has coopted the complaint review process. The drafters and voters of the 1960 and subsequent amendments did not intend for the commission staff to review complaints and advocate a disposition to the commission members. They intended for 2 judges, 3 attorneys, and 6 qualified members of the public appointed by the Governor, Chief Justice of the California Supreme Court, Assembly and Senate to carefully review complaints and instruct the commission staff on how to proceed. Not the other way around. It is facially apparent that the staff are reviewing complaints and making recommendations to the commission members, who are giving them a rubber stamp. Arizona’s commission explicitly assures that “[e]ach and every complaint filed against a judge is reviewed by all eleven members of the commission…” The commissions of other states have 19

similar explicit protocols.

17 2014 Annual Report. Commission on Judicial Performance. http://cjp.ca.gov/res/docs/annual_reports/2014_Annual_Report.pdf 18 Protecting the Public and the Integrity of the Judiciary. Speaker: Hon. Ignazio J. Ruvolo, Presiding Justice, 1st District Court of Appeal, Division 4. https://www.youtube.com/watch?v=hLd7HSlxjk8 (last visited January 11, 2015). See time lapse 20:15 22:15. 19 http://www.azcourts.gov/azcjc/PublicDecisions


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It appears the commission may have subverted its constitutional mandate by adopting “underground regulations.” Such underground regulations may constitute improper 20

governmental activity as defined under Government Code § 8547 et seq.:

“an activity by a state agency or by an employee that is undertaken in the performance of the employee's duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of his or her employment, and that (1) is in violation of any state or federal law or regulation, including, but not limited to, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency.”

What do the commission staff and the commission members do when a complaint is received? Are the memos prepared by a single staff member, or multiple staff members? Do the staff members have the same qualifications as the appointed members? How do commission members (or the public) know that all memos prepared by the staff accurately represent the facts or allegations and make an appropriate recommendation? A peremptory review process also creates an unacceptable opportunity for complaints to be improperly handled and for the memos to be tainted if they are selectively reviewed by one or a few staff members. Without fully reviewing each complaint, commission members have little ability to judge whether the staff summary and recommendation are accurate. Californians voted to have 11 qualified, vetted judges, attorneys, and citizens review and dispose of complaints. A subversive procedure violates the commission’s constitutional mandate. While commission member Ignazio Ruvolo attributes the extremely low rates of discipline to mean that “the overwhelming majority of judges are doing a terrific job,” the public is not 21

convinced. In fact, a 2014 study reports that of all 50 states, California has the highest level of perceived illegal corruption in its judicial branch, rating a 2.5 out of 5, between "slightly common" and "moderately common.” 22

20 Office of Administrative Law. http://www.oal.ca.gov/Underground_Regs.htm 21 Protecting the Public and the Integrity of the Judiciary. Speaker: Hon. Ignazio J. Ruvolo, Presiding Justice, 1st District Court of Appeal, Division 4. https://www.youtube.com/watch?v=hLd7HSlxjk8 (last visited January 11, 2015) 22 Measuring Illegal and Legal Corruption in American States: Some Results from the Corruption in America Survey. Oguzhan Dincer and Michael Johnston. http://ethics.harvard.edu/blog/measuringillegalandlegalcorruptionamericanstatessomeresultssafra


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D. The Commission on Judicial Performance shares a building with the Courts, creating the

appearance of impropriety.

The commission was established as part of the Judicial Council, but California voters approved a constitutional amendment in 1994 that required the commission become an autonomous agency. Although the commission became autonomous on paper, it continues to share the 23

same building as the Judicial Council, Administrative Office of the Courts, California Supreme Court, First District Court of Appeal (five divisions), and the Office of the Attorney General. Thus, the commission maintains a presence alongside numerous judicial offices. Commission staff members likely have relationships with and regularly communicate with others in the building. The commission also retained much of its original Judicial Council staff, including DirectorChief Counsel Victoria Henley, who has been with the commission since 1990. As a result, there is an unacceptable appearance of impropriety: the agency charged with investigating judicial misconduct is housed in the same building as many of those judicial officers and their staffers. Citizens do not permit bank regulators to share a building with the headquarters of large financial institutions. Likewise, the commission should not share a building with the headquarters of the judicial branch and six high courts under its jurisdiction. Further, San Francisco is the most expensive city in the nation in which to live. This 24

circumstance negatively impacts the commission’s ability to hire the most qualified staff, which may be compromising the agency’s ability to provide oversight and may also be a contributing factor to the commission’s inefficient performance relative to the commissions of other states. 4. THE COMMISSION ON JUDICIAL PERFORMANCE OPERATES IN SECRET AND

REFUSES TO COMPLY WITH PUBLIC RECORDS REQUESTS.

A. The Commission on Judicial Performance refuses to produce any records to the public.

On February 12, 2016, ROCK Attorneys at Law of San Francisco, on behalf of First Amendment Coalition of San Rafael, submitted a public records request to the Commission on Judicial Performance, largely requesting items that are disclosed by other government agencies and the commissions of other states, such as Arizona. In the commission’s response dated February 26, 2016, on behalf of the commission, Director Victoria Henley refused to provide records to any of the requests, arguing that the commission is exempt from Article I, Section 3(b) of the California Constitution, the California Public Records Act, the BagleyKeene Act, and California Rules of Court, rule 10.500. The public has a right to know about even an isolated act of misconduct or the appearance of impropriety. Judges are elected or retained by the voting public. In order to be an informed,

23 Comm’n on Judicial Performance, Mandate & Legislative History, ST. CAL., http:// cjp.ca.gov/mandate_legislative_history.htm (last visited January 11, 2015). 24 http://www.huffingtonpost.com/2012/10/22/mostexpensivecity_n_2002532.html


1515

responsible electorate, the public requires information about judicial disciplinary actions and complaints, even if they are dismissed.

Although some complaints may be “frivolous” and some discipline minor, citizens should be permitted to evaluate the information for themselves, as they do with other professionals. Additionally, if the complaints are posted after they are dismissed, they should have no negative impact on a judge because the commission, if it did its job, will have deemed them unwarranted. California citizens can currently learn if their doctors have been careless or their lawyers were suspected of misconduct, but they are rarely told when their judges are reprimanded for violating the law or Code of Judicial Ethics. The Commission on Judicial Performance was established in 1960 by voter approval of an amendment to Article VI of the California Constitution. The intent of the Constitutional mandate, as stated by its drafters, Senators Edward J. Regan and Joseph A. Rattigan, was to “assure real protection against incompetency, misconduct or nonperformance of duty on the Bench." A 25

1988 amendment gave the commission authority to open hearings to the public when it would be in the pursuit of public confidence and in the interests of justice. The amendment also provided for public statements by the commission under certain circumstances. A 1994 amendment conferred authority of censure and removal to the commission, mandated open hearings in formal proceedings, transferred commission rulemaking authority from the Judicial Council to the commission, and changed membership of the commission to 3 judges, 2 attorneys, and 6 citizens. These amendments establish a pattern of increasing accountability, 26

transparency, public access, and citizen oversight of the judiciary. The policies of the Commission on Judicial Performance have not changed to keep current with the positive trends in transparency. In 2006, the Arizona Supreme Court changed their commission’s rules to mandate public disclosure of dismissed complaints , which was supported by prosecutors and the Arizona 27

Newspapers Association. California’s constitutional and statutory rights to access are generally stronger than those of Arizona. Thus, just as the Arizona Supreme Court amended its commission rules to uphold that right, so too should California’s commission rules be amended.

B. The numbers reported by the Commission on Judicial Performance don’t add up.

It is facially concerning to a reasonable person that the residents of both Texas and New York reportedly file more judicial complaints than Californians, even though California has approximately 50% and 100% more residents, respectively. It is also concerning that the number of complaints reportedly filed in California from 20002009 was actually lower than

25 1960 California Ballot Propositions and Initiatives. Arguments In Favor of Senate Constitutional Amendment 14. Senators Edward J. Regan and Joseph A. Rattigan. 26 Comm’n on Judicial Performance, Mandate & Legislative History, ST. CAL., http:// cjp.ca.gov/mandate_legislative_history.htm (last visited January 11, 2015). 27 Supreme Court, State of Arizona, Order. https://www.azcourts.gov/portals/20/ramd_pdf/R040023.pdf


1616

19901999, despite population growth by over 33% over the period and increased public awareness about how to file complaints due to the Internet. As the 2012 Stanford Law Review article noted, the number of disciplines issued by the commission follows a decreasing trend from 19902010. When questioned during a phone interview by the author of the article, Commission Director Victoria Henley suggested that “recordkeeping changes” may account for the drop. 28

The reported statistics should be questioned. Given the commission’s extremely low inquiry, investigation, and discipline rates, secrecy, and refusal to provide any records, there is an unacceptably high risk of misconduct within the commission itself. 5. A STRONG JUDICIAL OVERSIGHT AGENCY IS NECESSARY TO PROTECT THE

PUBLIC AGAINST JUDICIAL MISCONDUCT.

A. The Commission on Judicial Performance provides the only real protection against

judicial misconduct.

The judicial branch interprets the meaning of laws, decides if laws violate the Constitution, and applies the law to individual cases. The Constitution establishes a system of checks and balances to preserve the integrity of the three branches of government. The judicial branch regularly checks the actions of the executive and legislative branches through judicial review. Decisions from the California Supreme Court and Courts of Appeal are routinely monitored by the public, members of the bar and judiciary, and the media. But there is little oversight or accountability of judicial officers at the Superior Court level, which constitutes approximately 99.54% of total case dispositions. Thus, it is of 29

great public importance to ensure the law is fairly and consistently applied to individual cases at the Superior Court level. While appellate decisions are supposed to correct legal errors and protect litigants from misconduct in Superior Courts, the appeals process is effectively unavailable to most litigants due to cost or inability to represent oneself. Approximately 0.33% of Superior Court dispositions are appealed. 23 The absence of transcripts in many trial court proceedings make successful appeals even more improbable. Unrecorded proceedings expose litigants to misconduct, hinder access to justice, and undermine public confidence in the courts. See proposed Assembly bills AB 803 (2011) and AB 251 (2013) , which expounded the need for electronic recording in all 30 31

Superior Courts.

28 http://www.stanfordlawreview.org/sites/default/files/Abel64StanLRev1021.pdf, page 1039 29 2014 Court Statistics Report. Statewide Caseload Trends, 20032004 through 20122013. Judicial Council of California (Dispositions: 6,620,807 Superior; 22,092 Appellate; 8,269 Supreme).

30 https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB803 31 http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB251


1717

Because oversight is lacking at the Superior Court level, it is imperative that robust mechanisms are in place to deter, investigate, and discipline judicial misconduct. The Commission on Judicial Performance is solely responsible for ensuring that judicial officers uphold the Code of Judicial Ethics. Failure to uphold the code results in unfair application of the law and erodes public trust in the judiciary. California has established three procedures to discipline an unfit judge:

Impeachment and conviction by the Legislature Recall election Action by the Commission on Judicial Performance

i. Impeachment and conviction of judicial officers does not occur.

Under Cal. Const., Art. IV, Sec. 18, a judge may be impeached by the Assembly and convicted by a twothirds vote in the Senate after hearings on the merits. While the Legislature has impeachment processes available to remove judicial officers, they are not used in practice. The last impeachment occurred 87 years ago, in 1929. Only two judges have been impeached in California’s 165year history. 32

One reason judicial impeachments do not occur in California is because there are virtually no mechanisms in place to evaluate the performance of judicial officers or to expose misconduct. The Center for Public Integrity a highly regarded nonpartisan, nonprofit organization and winner of the 2014 Pulitzer Prize for Investigative Reporting published an indepth study assessing the systems in place to deter corruption and promote transparency in state governments. While California ranked 2nd overall, it received an “F” in the category of “Judicial Accountability.” 33

Impeachments are also nonexistent because the Legislature lacks the capacity to oversee the judiciary 40 Senators and 80 Assemblymembers already responsible for representing nearly 40 million people cannot also oversee 2,000+ judicial officers . Further, legislators are keenly aware that the courts can make important rulings, including changing the electoral maps with ease by the many lawsuits brought against districts.

ii. Recall elections and elections are not a practical mechanism to remove bad judicial

officers.

Cal. Const., Art II, Sec. 19, and Elections Code §§ 11001 and 11006 provide for the recall of state and local officers. However, the recall process is extremely burdensome, requiring dozens of steps and timeconsuming work that is all but impossible except by large, wellfunded movements:

32 Judicial Discipline in California: A Critical ReEvaluation. Loyola of Los Angeles Law Review. Wilbank J. Roche. December 1, 1976.

33 http://www.publicintegrity.org/2015/11/09/18342/californiagetscgrade2015stateintegrityinvestigation Court Reform LLC CourtReformLLC.com

1818

Preparation, service, and filing of a Notice of Intention Publication of the Notice of Intention Filing of a Proof of Publication Answer of Recallee Preparation of Recall Petition (with numerous precise requirements regarding the

heading, sections, signature space, declaration of circulator) Approval of the Recall Petition Circulating and acquiring signatures (ranging from 1030% of the number of registered

voters in most local elections) Filing Recall Petition within a relatively short period of time (40160 days depending on

the number of registered voters). Absent egregious, public misconduct by a judge, recall elections are an unrealistic procedure to discipline or remove an unfit judge, especially at the Superior Court level where the public is largely uninformed or complacent about injustices in individual cases. California has the lowest opposition rate in the country for judicial elections at 8% further evidence that elections are not an effective method for removing a bad judge. Moreover, because the Commission on Judicial Performance maintains complete confidentiality of all records except those resulting in public discipline (an average of 6 per year during the past 10 years), the public has little ability to obtain information relevant to a judicial election. California also does not implement judicial performance evaluations, one of the reasons it received an “F” in Judicial Accountability by the Center for Public Integrity. These circumstances create a 34

protective shield for sitting judges: the public is not informed about a judge’s misconduct or performance, so they have no reason to vote them out during an election.

iii. The judicial branch and its officers often do not comply with laws that protect the public.

Government Code § 77001.5 requires the Judicial Council to adopt and implement standards that “measures that promote the fair and efficient administration of justice,” including “[p]roviding equal access to courts and respectful treatment for all court participants,” “[c]ase processing, including the efficient use of judicial resources,” and to report on those standards to the Legislature annually. However, the Judicial Council fails to comply with the law. Code Civ. Proc. § 170.1 et seq. allows a party to challenge a judge for cause by filing a motion to disqualify them and have a hearing in front of a third party judge. However, judges are routinely denying their own § 170.1 challenges knowing that litigants are unrepresented and the only remedy for a denial is to file a writ in a Court of Appeal within 10 days, which most unrepresented litigants are incapable of preparing or cannot afford. Further, over 90% of writs are denied. 35

34 http://www.publicintegrity.org/2015/11/09/18342/californiagetscgrade2015stateintegrityinvestigation 35 http://www.courts.ca.gov/documents/2014CourtStatisticsReport.pdf


1919

iv. Therefore, the Commission on Judicial Performance provides the only real protection

against judicial misconduct.

Indeed, even the 1960 ballot initiative argued that a commission must be established because impeachment and recall are not effective methods to remove a bad judge:

“First, the measure proposes 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. It is only rarely that cause exists for the removal of a judge. But where such cause does exist, the removal should be fast and sure. The Conference of California Judges, by an overwhelming vote, has endorsed this measure as a protection for the competent, hardworking judges against the rare cases of incompetency and misconduct on the Bench. The People are at least equally entitled to such protection.”

For all practical purposes the Commission on Judicial Performance serves as the only protection against bad judges. A state agency charged with such an important task preserving the integrity of an entire branch of government should adopt rules and procedures that promote accountability, transparency, and consistency in resolving complaints. The Commission’s current rules largely do not adhere these principles. 6. CONCLUSION

Judicial misconduct and accountability is a major problem across the country, and California is a severe, negative outlier. Judicial misconduct is one of the most important, underinvestigated and underreported issues affecting Californians today. The budget of the judicial branch is $3.8 billion, and its more than 2,000 judicial officers dispose of 7 million cases annually. The disposition of each of these cases has a direct, lifelong impact on the persons involved and their families and friends. California’s 40 million residents should have confidence that justice is being done in the courts, but they do not . 36

“[P]ublic perception of judicial integrity is ‘a state interest of the highest order’…

justice must satisfy the appearance of justice.”

U.S. Supreme Court in Yulee v. State Bar of Florida (2015) There is statewide public concern about the integrity of California’s courts and the Commission on Judicial Performance. Grassroots movements that promote judicial accountability and transparency are rapidly forming across the state, and technology will continue to give the movements a stronger voice and greater organization. Many of these activists and their families have been irreparably harmed by judicial misconduct. Bad judges cause innocent people to be found guilty, guilty people to be found innocent, issue unfair and inconsistent sentences, cause

36 http://ethics.harvard.edu/blog/measuringillegalandlegalcorruptionamericanstatessomeresultssafra


2020

harm to children and families, erode the public trust, and waste millions of taxpayer dollars in a dysfunctional system. The integrity of the largest judiciary in the Western world cannot be trusted to a small agency under circumstances with no accountability or transparency. Based on the tremendous disparity in the discipline rates between California and other states, if the integrity of the Commission on Judicial Performance has been compromised it potentially means that hundreds of unfit judges currently sit on California’s benches whom would have been removed by the commissions of other states. The public urges the Legislature to make increased judicial accountability a top priority.

“At the establishment of our constitutions, the judiciary bodies were supposed to

be the most helpless and harmless members of the government. Experience,

however, soon showed in what way they were to become the most dangerous;

that the insufficiency of the means provided for their removal gave them a

freehold and irresponsibility in office; that their decisions, seeming to concern

individual suitors only, pass silent and unheeded by the public at large; that these

decisions, nevertheless, become law by precedent, sapping, by little and little, the

foundations of the constitution, and working its change by construction, before

any one has perceived that that invisible and helpless worm has been busily

employed in consuming its substance. In truth, man is not made to be trusted for

life if secured against all liability to account.”

Thomas Jefferson, letter to A. Coray. October 31, 1823.


2121

APPENDIX

2222

California

2323

CA Commission on Judicial PerformanceStatistics by Year (2005 - 2014)

Data from California Commission on Judicial Performance. 2014 Annual Report. Website: http://cjp.ca.gov/res/docs/annual_reports/2014_Annual_Report.pdf

Year Complaints Disposed

Private Discipline Public Discipline Total Discipline

Resign / Retire with charges

pending

Preliminary Inquiries

Preliminary Investigation

s

Advisory Letters

Private Admonishments

Public Admonishments

Public Censures

Removals

2005 955 12 6 4 2 0 24 4 55 41

2006 1023 16 7 9 4 1 37 3 67 51

2007 1058 20 9 5 1 2 37 1 55 54

2008 892 18 7 7 0 2 34 5 70 42

2009 1115 25 3 2 1 0 31 3 102 63

2010 1133 31 8 4 3 0 46 3 101 101

2011 1138 26 10 5 1 0 42 2 95 77

2012 1152 30 6 5 1 1 43 3 72 80

2013 1181 21 7 1 1 0 30 2 53 102

2014 1174 29 9 3 2 0 43 2 84 101

Total 10821 300 67 367 28 754 712

Average 1082.1 30 6.7 36.7 2.8 75.4 71.2

Percent 2.8% 0.6% 3.4% 0.3% 7.0% 6.6%

2424

2014 ANNUAL REPORTPAGE 14

10-YEAR SUMMARY OF COMMISSION ACTIVITY

III.ACTIVE AND FORMER JUDGES – 2014 STATISTICS

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

965 1,019 1,077 909 1,161 1,176 1,158 1,143 1,209 1,212

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

Staff Inquiries55

(6%)67

(7%)55

(5%)70

(8%)102(9%)

101(9%)

95(8%)

72(6%)

53(4%)

84(7%)

Preliminary Investigations41

(4%)51

(5%)54

(5%)42

(5%)63

(5%)101(9%)

77(7%)

80(7%)

102(8%)

101(8%)

Formal Proceedings Instituted

4(<1%)

5(<1%)

1(<1%)

2(<1%)

1(<1%)

2(<1%)

1(<1%)

2(<1%)

0(0%)

2(<1%)

DISPOSITION OF COMMISSION CASES

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

Total Dispositions 955 1,023 1,058 892 1,115 1,133 1,138 1,152 1,181 1,174

Closed After Initial Review876(92%)

919(90%)

975(92%)

805(90%)

1,007(90%)

988(87%)

995(87%)

1,000(87%)

1,061(90%)

1,039(89%)

Closed Without Discipline After Investigation

51(5%)

64(6%)

45(4%)

48(5%)

74(7%)

96(8%)

99(9%)

106(9%)

88(8%)

90(8%)

Advisory Letter12

(1%)16

(2%)20

(2%)18

(2%)25

(2%)31

(3%)26

(2%)30

(3%)21

(2%)29

(2%)

Private Admonishment6

(<1%)7

(<1%)9

(<1%)7

(<1%)3

(<1%)8

(<1%)10

(<1%)6

(<1%)7

(<1%)9

(<1%)

Public Admonishment4

(<1%)9

(<1%)5

(<1%)7

(<1%)2

(<1%)4

(<1%)5

(<1%)5

(<1%)1

(<1%)3

(<1%)

Public Censure2

(<1%)4

(<1%)1

(<1%)0

(0%)1

(<1%)3

(<1%)1

(<1%)1

(<1%)1

(<1%)2

(<1%)

Removal0

(0%)1

(<1%)2

(<1%)2

(<1%)0

(0%)0

(0%)0

(0%)1

(<1%)0

(0%)0

(0%)

Judge Retired or Resigned with Proceedings Pending

4(<1%)

3(<1%)

1(<1%)

5(<1%)

3(<1%)

3(<1%)

2(<1%)

3(<1%)

2(<1%)

2(<1%)

COMMISSION INVESTIGATIONS COMMENCED

NEW COMPLAINTS CONSIDERED BY COMMISSION

2525

Commission on Judicial Performance2014-2015 Actual Expenditures

$4,302,681

Administration/General Office

15%

Legal Advisor7%

General OperatingExpenses

9%

Investigations42%

Formal Proceedings12%

Facilities15%

2626

* Two positions are vacant.

ORGANIZATIONAL CHART

COMMISSION MEMBERS

DIRECTOR-CHIEF COUNSEL

OFFICE OF TRIAL COUNSEL

1 Attorney

½ Administrative Assistant

INVESTIGATION STAFF

3 Intake Attorneys 6 Investigating Attorneys

3 Secretaries* ½ Administrative Assistant

ADMINISTRATIVE STAFF 1½ Administrative Assistants

1 Data/Systems Manager* 1 Business Services Officer

1 Secretary

OFFICE OF LEGAL ADVISOR TO

COMMISSIONERS

1 Attorney ½ Administrative Assistant

2727

Arizona

2828

Arizona Commission on Judicial ConductStatistics by Year (2006 - 2015)

Data from Arizona Commission on Judicial Conduct. Public Decisions 2006 - 2015. Website: http://www.azcourts.gov/azcjc/Public-Decisions

Year Complaints Disposed

Private Discipline Public Discipline Total Discipline

Letter - advice to change behavior or procedure

Letter - warning to avoid appearance of impropriety

Consultation with commission, or consolidation of complaint

Reprimands Censures Suspensions Removals

2006 320 28 16 0 5 3 2 0 54

2007 324 36 9 2 4 0 0 0 51

2008 334 38 9 0 4 3 0 0 54

2009 352 34 8 1 9 3 0 0 55

2010 361 29 16 0 6 4 0 0 55

2011 313 29 10 0 8 2 0 1 50

2012 361 24 8 0 23 1 0 0 56

2013 344 17 7 0 9 0 0 0 33

2014 413 11 6 0 7 2 1 1 28

2015 337 18 10 0 6 0 0 0 34

Total 3459 366 104 470

Average 345.9 36.6 10.4 47

Percent 10.6% 3.0% 13.6%

2929

http://www.azcourts.gov/azcjc/Public-Decisions

16

communities he has resided in and as a result, has volunteered on a number of boards of organizations making a significant difference.

Colleen Concannon (Commission Secretary) is the Information Technology Supervisor of Project Management for the City of Tempe. She is also the CEO of an international gemstone company based in Tucson, Arizona. She is a native Tucsonan who received her Bachelor’s Degree from the University of Arizona, a Master of Public Administration from the University of North Texas, and a Master of Science in Accounting from the University of Houston. She has also worked in the public sector as Controller for the Park Board of Trustees of the City of Galveston, Texas and returned to Tucson in 1993 to become the Vice President and Chief Information Officer for Thomas-Davis Medical Centers and later the Clinical Administrator for TDMC’s Main facility. Ms. Concannon’s private sector career has been focused on establishing and building distinctive business enterprises in both Texas and Arizona. Ms. Concannon is a dedicated community volunteer and has served as a board member for numerous public and private organizations within the State of Arizona. She has been a member of the Arizona Commission on Judicial Conduct since January 2010.

Christopher (“Chris”) R. Ames has 40 years of software industry experience ranging from programmer to senior executive. He is the President of Paragon Technology, Inc., a company he co-founded in 1983. Early clients included the Apache County Treasurer and Trans World Airlines. In 1992 he entered into a project management contract with ADS Communications, Inc., for the development of its field service product. Over the next 11 years he led the company through several phases of expansion in product offering and corresponding revenue growth. ADS was purchased by EFI (Electronics For Imaging, Inc.) in 2004, and Chris continued his responsibility as Chief Technology Officer for another 2 years. Chris is a patented inventor and holds a BS in Computer Information Systems from Arizona State University’s W.P. Carey School of Business. The Ames family has lived in the east valley since 1976. Chris was a member of the Capital and Development Fees subcommittee of the 2009 Town of Gilbert Citizen’s Budget Committee and is an original member of Gilbert’s Operation Welcome Home Committee.

Commission Budget and Finances

The commission is funded as a part of the legislature’s general fund appropriation to the Arizona Judicial Branch. For the fiscal year ending on June 30, 2016, the commission’s budget totals $505,000 to cover all operations and activities. Employee compensation and benefits and facilities rent make up over ninety percent of the commission’s expenditures.

3030

17

Commission Staff

The commission’s full-time staff consists of an executive director, disciplinary counsel, commission specialist, and administrative assistant. A part-time temporary employee supports the commission’s database program and related activities. George Riemer has been the commission’s executive director since July 2011. He is an active member of the State Bar of Arizona and has been a licensed attorney since 1975. Mr. Riemer also serves as the Staff Director for the Arizona Supreme Court Judicial Ethics Advisory Committee and is an attorney member of the Arizona Supreme Court Attorney Regulation Advisory Committee. April Elliott has been the commission’s disciplinary counsel since October 2014. Ms. Elliott is an active member of the State Bar of Arizona and most recently served as the Public Defender in Pinal County. Her previous experience includes serving as a Pinal County family court commissioner and Pinal County Superior Court Judge. Administrative support for the commission in 2015 was provided by Kim Welch, commission specialist, and Camille Keltz, administrative assistant. Pursuant to Arizona Supreme Court Administrative Order 2014-11, the position of independent bar counsel (IBC) was placed under the supervision and direction of the commission’s executive director and is located in the commission’s office suite. IBC investigates and resolves through the lawyer discipline process complaints filed against lawyers that for conflict of interest reasons cannot be investigated and resolved through that process by the Office of Chief Bar Counsel of the State Bar of Arizona. IBC also assists the commission in the investigation and resolution of complaints about judges. Administrative support for IBC is provided by commission staff.

Meredith Vivona has served as Independent Bar Counsel since April 2014. Ms. Vivona is an active member of the State Bar of Arizona. Her prior experience includes the private practice of law with several Phoenix area law firms for over ten years.

Judicial Ethics Advisory Committee

The commission’s executive director supports the activities of the Arizona Supreme Court Judicial Ethics Advisory Committee (JEAC). The JEAC has nine members, including seven judges and two lawyers. The committee’s charge, as set forth in Arizona Supreme Court Rule 82, is to provide prospective advice to judges and judicial employees in order to avoid violations of the Code of Judicial Conduct and the Code of Conduct for Judicial Employees. The executive director is the initial contact for judicial ethics inquiries. He provides inquirers with his reaction and if requested, the inquiry is submitted to the committee for further consideration. The objective is to assist judges and judicial employees in avoiding ethics violations. A

3131

New York

3232

NY State Commission on Judicial ConductStatistics by Year (2005 - 2014)

Data from New York State Commission on Judicial Conduct, Annual Reports

Website: http://www.scjc.state.ny.us/Publications/AnnualReports.htm

Year Complaints Disposed*

Private Discipline

Public Discipline**

Total Discipline

Resign*** Retire, did not run for reelection, or vacated office for other reason****

Total vacancies of office for any reason (resign, retire, removal, no reelection,

other)

Preliminary Inquiries

Investigations

Letter of Dismissal and Caution, Letter of Caution

Public Admonition, Public Censure, Removal (removals in parentheses)

2005 1574 43 34 (4) 43 18 15 37 366 260

2006 1446 60 18 (3) 60 22 7 32 375 267

2007 1748 28 25 (5) 28 12 28 45 413 192

2008 1953 39 24 (1) 39 35 21 57 354 262

2009 1820 58 32 (2) 58 21 12 35 471 257

2010 2042 43 21 (1) 43 20 10 31 439 225

2011 1828 29 16 (2) 29 19 10 31 464 172

2012 1795 28 28 (3) 28 18 17 38 460 182

2013 1775 18 16 (2) 18 20 14 36 477 177

2014 1797 28 7 (0) 28 27 12 39 499 145

Total 17778 374 221 (23) 374 212 146 381 4318 2139

Average 1777.8 37.4 22.1 37.4 21.2 14.6 38.1 431.8 213.9

Percent 2.1% 1.2% 3.3% 1.2% 0.8% 2.1% 24.3% 12.0%

3333

http://www.scjc.state.ny.us/Publications/AnnualReports.htm

Discipline statistics as reported in the New York State Annual Reports, “Statistical Analysis of Complaints” sections, “All Complaints Considered in [Year] (typically found near the very end of the Annual Reports)*Complaints Disposed = Complaints filed in current year + Complaints pending from prior year - Complaints pending at end of current year (as reported in “Statistical Analysis of Complaints” sections of Annual Reports)**Reported as “Action” in the “Statistical Analysis of Complaints” sections***Approximately one-third to one-half of resignations are made public. These resignations are not included in the Public Discipline numbers above. Thus, the number of Public Disciplines is significantly higher than reported above.****Reported as “Closed” in the “Statistical Analysis of Complaints” sections

3434

ALL COMPLAINTS CONSIDERED IN 2005: 1565 NEW & 230 PENDING FROM 2004

SUBJECT OF COMPLAINT

STATUS OF INVESTIGATED COMPLAINTS

TOTALS

DISMISSED ON FIRST

REVIEW OR AFTER

PRELIM’RY INQUIRY PENDING DISMISSED DISMISSAL

& CAUTION RESIGNED CLOSED* ACTION*

INCORRECT RULING 677 677

NON-JUDGES 281 281

DEMEANOR 112 69 67 18 2 2 14 284

DELAYS 38 19 12 3 2 0 0 74

CONFLICT OF INTEREST 26 11 13 3 0 2 5 60

BIAS 59 11 13 2 1 1 1 88

CORRUPTION 13 12 3 2 1 6 1 38

INTOXICATION 2 0 0 0 0 0 2 4

DISABILITY/QUALIFICATIONS 0 1 0 0 0 0 0 1

POLITICAL ACTIVITY 6 23 7 3 0 0 0 39

FINANCES/RECORDS/TRAINING 11 23 11 3 1 2 0 51

TICKET-FIXING 0 2 0 0 1 0 1 4

ASSERTION OF INFLUENCE 4 9 4 2 1 0 5 25

VIOLATION OF RIGHTS 56 40 26 7 7 1 5 142

MISCELLANEOUS 20 1 3 0 2 1 0 27

TOTALS 1305 221 159 43 18 15 34 1795

251

*Matters are “closed” upon vacancy of office for reasons other than resignation. “Action” includes determinations of admonition, censure and removal from office by the Commission since its inception in 1978, as well as suspensions and disciplinary proceedings commenced in the courts by the temporary and former commissions on judicial conduct operating from 1975 to 1978.

3535




TOTALS

DISMISSED ON FIRST

REVIEW OR AFTER

PRELIMINARY INQUIRY PENDING DISMISSED CAUTION RESIGNED CLOSED* ACTION*


NON-JUDGES 266 266

DEMEANOR 114 76 32 10 8 1 9 250

DELAYS 28 15 10 9 4 0 0 66


BIAS 35 13 5 2 0 1 0 56

CORRUPTION 19 11 3 0 0 0 2 35









TOTALS 1233 275 106 60 22 7 18 1721

163


3636




DISMISSED ON FIRST

REVIEW OR PRELIMINARY

INQUIRY PENDING DISMISSED CAUTION RESIGNED CLOSED* ACTION*

TOTALS


NON-JUDGES 307 307

DEMEANOR 113 55 42 2 2 14 7 235

DELAYS 35 14 13 2 0 1 3 68


BIAS 15 8 6 0 0 0 4 33

CORRUPTION 19 8 1 2 1 1 1 33









TOTALS 1519 238 136 28 12 28 25 1986

241


3737



DISMISSED ON FIRST


INQUIRY


TOTALS

PENDING DISMISSED CAUTION RESIGNED CLOSED* ACTION*


NON-JUDGES 396 396

DEMEANOR 114 39 51 6 6 8 5 229

DELAYS 55 18 10 3 3 1 1 91


BIAS 23 9 10 1 0 0 1 44

CORRUPTION 19 12 3 1 1 1 0 37









TOTALS 1661 208 173 39 35 21 24 2161


APPEN

DIX

G STA

TISTICA

L AN

ALY

SIS OF C

OM

PLAIN

TS +

2009 AN

NU

AL R

EPOR

T PA

GE 185

3838



DISMISSED ON FIRST


INQUIRY


TOTALS



NON-JUDGES 334 334

DEMEANOR 91 68 27 8 2 5 7 208

DELAYS 66 20 2 11 2 2 2 105


BIAS 29 7 7 1 0 0 2 46

CORRUPTION 24 12 8 0 2 1 3 50









TOTALS 1598 243 99 58 21 12 32 2063


2010 ANNUAL REPORT PAGE 2483939


S

UBJECT

O

F

C

OMPLAINT

DISMISSED ON FIRST REVIEW OR PRELIMINARY INQUIRY

STATUS OF INVESTIGATED COMPLAINTS TOTALS



NON-JUDGES 354 354

DEMEANOR 102 47 50 8 3 1 5 216

DELAYS 38 18 9 5 0 1 2 73


BIAS 18 9 9 1 1 0 0 38

CORRUPTION 20 9 9 0 0 1 0 39









TOTALS

1800 226 148 43 20 10 21 2268


2011 ANNUAL REPORT Ƈ PAGE 1584040

2012ANNUALREPORTƇPAGE232


DISMISSED ON FIRST


INQUIRY

STATUS OF INVESTIGATED COMPLAINTS SUBJECT TOTALS OF

COMPLAINT PENDING DISMISSED CAUTION RESIGNED CLOSED* ACTION*


NON-JUDGES 304 304

DEMEANOR 115 38 31 5 2 0 1 192

DELAYS 42 15 9 3 3 0 0 72


BIAS 18 9 6 0 1 2 0 36

CORRUPTION 22 17 1 0 0 0 0 40









TOTALS 1646 216 108 29 19 10 16 2044


4141

*Matters are “closed” upon vacancy of office for reasons other than resignation. “Action” includes determinations of admonition,censure and removal from office by the Commission since its inception in 1978, as well as suspensions and disciplinary proceedings commenced in the courts by the temporary and former commissions on judicial conduct operating from 1975 to 1978.



DISMISSED ON FIRST REVIEW

ORPRELIMINARY

INQUIRY

STATUS OF INVESTIGATED COMPLAINTSTOTALS



NON-JUDGES 329 329

DEMEANOR 82 48 19 3 2 2 4 160

DELAYS 52 10 7 2 1 2 3 77


BIAS 24 7 4 0 2 0 0 37

CORRUPTION 23 9 10 0 0 0 3 45









TOTALS 1603 206 101 28 18 17 28 2001

APPENDIX G STATISTICAL ANALYSIS OF COMPLAINTS __________________________________________________________________________________________________________________________________

______________________________________________________________________________________________________________________ 2013 ANNUAL REPORT ♦ PAGE 349

4242




OR PRELIMINARY

INQUIRY


TOTALS


INCORRECT RULING 1,062 1,062

NON-JUDGES 313 313

DEMEANOR 78 40 30 3 5 2 1 159

DELAYS 35 11 3 1 0 1 2 53


BIAS 19 8 6 0 0 1 1 35

CORRUPTION 15 6 4 0 3 0 1 29









TOTALS 1,593 201 114 18 20 14 16 1,976

*Matters are “closed” upon vacancy of office for reasons other than resignation. “Action” includes determinations of admonition, censure and removal from office by the Commission.

APPENDIX G STATISTICAL ANALYSIS OF COMPLAINTS ______________________________________________________________________________________________________________________


4343

*Matters are “closed” upon vacancy of office for reasons other than resignation. “Action” includes determinations of admonition, censure and removal from office by the Commission.




OR PRELIMINARY

INQUIRY


TOTALS


INCORRECT RULING 1,056 1,056

NON-JUDGES 300 300

DEMEANOR 118 32 27 3 1 0 0 181

DELAYS 29 8 3 4 0 1 0 45


BIAS 25 8 3 1 0 0 0 37

CORRUPTION 20 9 1 0 1 0 1 32









TOTALS 1,622 171 101 28 27 12 7 1,968

APPENDIX G STATISTICAL ANALYSIS OF COMPLAINTS __________________________________________________________________________________________________________________________________


4444

Texas

4545

TX State Commission on Judicial ConductStatistics by Year (2005 - 2014)

Data from Texas State Commission on Judicial Performance. 2014 Annual Report. Website: http://www.scjc.texas.gov/about/annual-reports.aspx

*Private Disciplines (5): Private Order of Additional Education, Private sanction and Order of Additional Education, Private Admonition, Private Warning, Private Reprimand**Public Disciplines (7): Public Order of Additional Education, Public sanction and Order of Additional Education, Public Admonition, Public Warning, Public Reprimand, Public Censure and Order of Additional Education, Public Censure***Suspensions (removal) result from a decision by a tribunal or Texas Supreme Court after a recommendation from the Texas State Commission on Judicial Conduct

Year Cases Disposed

Private Discipline*

Public Discipline**

Suspension*** Total Discipline

Resign / Retire with complaint

pending

Preliminary Investigations

Full Investigations

2005 1106 31 16 3 50 6 198 295

2006 985 21 11 4 36 3 203 202

2007 1049 28 4 2 34 9 185 335

2008 1005 28 11 4 43 1 200 230

2009 1110 25 20 4 49 2 303 271

2010 1290 37 35 6 78 10 333 256

2011 1192 27 7 3 37 5 337 248

2012 1049 34 8 3 45 3 327 212

2013 1103 29 1 7 37 5 265 306

2014 1075 38 14 3 55 6 278 281

Total 10964 298 127 39 464 50 2629 2636

Average 1096.4 29.8 12.7 3.9 46.4 5 262.9 263.6

Percent 2.7% 1.2% 0.4% 4.2% 0.5% 24.0% 24.0%

4646

http://www.scjc.texas.gov/about/annual-reports.aspx

Table 1: Commission Activity FISCAL YEAR

2005 FISCAL YEAR

2006 FISCAL YEAR

2007 FISCAL YEAR

2008

Cases Pending (Beginning FY/To Date) 398/393

393/453

453/385

385/406

Cases Filed

1101

1045

1043

1049

Total Number Of Cases Disposed 1106 985 1049 1005

% of Cases Disposed 100.5% 94% 100.4% 96%

Average Age of Cases Disposed 4.5

Months 5.1

Months 5.3

Months 4.7

Months

Disciplinary Action (total) 65 42 45 56

Cases Disposed through:

Criminal Conviction

0

0

0

0

Review Tribunal Order

4

0

0

0

Voluntarily Agreement to Resign in Lieu of Disciplinary Action

6

3

9

1

Sanction:

Public Censure

0

0

0

0

Public Censure and Order of Additional Education

0

0

0

0

Public Reprimand

6

3

0

0

Public Warning

3

2

0

1

Public Admonition

3

6

1

6

Public sanction and Order of Additional Education

4

0

3

4

Private Reprimand

1

1

2

2

Private Warning

8

4

3

6

Private Admonition

8

3

8

6

Private sanction and Order of Additional Education

6

8

7

6

Public Order of Additional Education

0

0

0

0

Private Order of Additional Education

8

5

8

8

Interim Disciplinary Action:

Order of Suspension [15(a)]

3

4

2

4

Recommendation of Suspension to Supreme Court [15(b)]

4

0

0

0

Formal Proceedings Voted

0

3

2

12

Amicus Referral

1

0

0

0

Dismissals

1049

950

1008

966

Requests for Reconsideration Received

29

28

48

43

Reconsideration Granted

1

2

3

8

Reconsideration Denied

28

26

45

35

Pending

0

0

0

0

Cases Appealed to Special Court of Review 0 2 0

5

Informal Hearings Set 32* 22* 24* 31*

Public Statements Issued 0 1 0 1

Updated 09/11/08 164747

Fig. 4 Number of Cases Disposed By Complainant Type*

Commission/Media9

[1%]

Pro Se56

[6%]

Litigant260

[26%]

Anonymous31

[3%]

Law Enforcement/Prosecutor

6[1%]

Judge/Government Official/

Government Employee15

[2%]

Citizen/Family/Friend131

[13%]

Attorney44

[4%]Inmate/Criminal

Defendant/Traffic Defendant

419[42%]

Other34

[3%]

*1005 Total Cases Disposed

Fig. 5 Cases Filed and Disposed (FY 2005 - FY 2008)

1101

1045 10431049

1106

985

1049

1005

920940960980

1000102010401060108011001120

2005 2006 2007 2008

CASES FILEDTOTAL DISPOSED

184848

Fig. 6a Commission Activity (FY 2005-2008)

74

1616

11

4

11

31

21

28 28

63

9

1

8

0

5

10

15

20

25

30

35

2005 2006 2007 2008

Interim Actions *

Public Sanctions

Private Sanctions

Voluntary Resignations in Lieu ofDisciplinary Action

Fig. 6b. Commission Activity Trends (FY 2005 - 2008)

0

5

10

15

20

25

30

35

2005 2006 2007 2008

Interim Actions *

Public Sanctions

Private Sanctions

VoluntaryResignations in Lieuof Disciplinary Action

*Interim Actions include: Orders of Suspension, Recommendations of Suspension to Supreme Court, Formal Proceedings Voted, and Amicus Curiae Referrals.

194949

Fig. 7a Comparison of Investigations by Type (2005-2008)

580529

575

198 185 200

295335

230

613

203 202

0

100

200

300

400

500

600

700

2005 2006 2007 2008

AdministrativeDismissals *PreliminaryInvestigations **Full Investigations ***

Fig. 7b Investigations by Type Trends (FY 2005 - FY 2008)

0

100

200

300

400

500

600

700

2005 2006 2007 2008

AdministrativeDismissals *PreliminaryInvestigations **Full Investigations ***

*Administrative Dismissals include files disposed without investigation, because no allegation of judicial misconduct was raised. **Preliminary Investigations include allegations of judicial misconduct that were resolved without contacting the respondent judge. ***Full Investigations include those cases in which the respondent judge was asked to respond to the allegations of judicial misconduct.

205050


2008 FISCAL YEAR

2009 FISCAL YEAR

2010 FISCAL YEAR

2011

Cases Pending (Beginning FY/Ending FY) 385/406

406/445

445/503

503/430

Cases Filed

1049

1204

1280

1119


% of Cases Disposed 96% 92.1% 100.7% 106.5%

Average Age of Cases Disposed 4.7 Months

6.19 Months

5.35 Months

5.66 Months



Criminal Conviction

0

0

0

0


0

0

0

0


1

2

10

5

Sanction: Public Censure

0

0

0

0


0

0

0

0

Public Reprimand

0

11

1

1

Public Warning

1

5

18*

2

Public Admonition

6

2

10

3


4

2

6

1

Private Reprimand

2

0

2

3

Private Warning

6

4

3

3

Private Admonition

6

6

19

8


6

6

6

12


0

0

0

0


8

9

7

1

Interim Disciplinary Action: Order of Suspension [15(a)]

4

4

6

3


0

0

0

0

Cases in Formal Proceedings

12

19

0

0

Amicus Referral

0

0

1

0

Dismissals

966

1063

1208

1154


43

53

106

226


8

1

0

0


35

47

104

226

Pending

0

5

2

0

Cases Appealed to Special Court of Review 5

2

16

0

Informal Hearings Set 31 25 21 13 (Includes Aug. 2011 Meeting.)


*Total dispositions and disciplinary action totals include a Public Warning issued by the Commission in 16 cases at the conclusion of Formal Proceedings. In October 2010, on appeal to a Special Court of Review appointed by the Texas Supreme Court, the Public Warning in those 16 cases was dismissed. 5151

5252

5353

5454

5555

950

1000

1050

1100

1150

1200

1250

2011 2012 2013 2014

1119

1216

1132 1136

1192

1054

1103

1075

Fig. 5a Cases Fi led and Disposed (FY 2011 - FY 2014)

Cases Filed Total Disposed

950

1000

1050

1100

1150

1200

1250

2011 2012 2013 2014

Fig. 5b Case Filing Trend (FY 2011 - FY 2014)

Cases Filed

Total Disposed

5656

0

5

10

15

20

25

30

35

40

2011 2012 2013 2014

3 47

3

7

12

1

14

26

30 29

38

53

5 6

Fig. 6a Commission Act ivity (FY 2011 -2014)Interim Actions * Public Sanctions Private Sanctions Voluntary Resignations in Lieu of Disciplinary Action

*Interim Actions include: Orders of Suspension, Recommendations of Suspensionto Supreme Court, Formal Proceedings Voted, and Amicus Curiae Referrals.

0

5

10

15

20

25

30

35

40

2011 2012 2013 2014

Fig. 6b Commission Activity Trend (FY 2011-2014)

Interim Actions *

Public Sanctions

Private Sanctions

Voluntary Resignationsin Lieu of DisciplinaryAction

*Interim Actions include: Orders ofSuspension, Recommendations of Suspension to Supreme Court, Formal Proceedings Voted, and Amicus Curiae Referrals.

5757

2

2014 COMPLAINT DISPOSITIONS

2014 COMPLAINT DISPOSITIONS

1075

CLOSED AFTER INITIAL REVIEW/

PRELIMINARY INVESTIGATION

794

DISPOSITION FOLLOWING FULL

INVESTIGATION

281

CLOSED WITHOUT DISCIPLINE

188

DISCIPLINE ISSUED

61

2

PUBLIC DISCIPLINE

2

PUBLIC ADMONITION

2

2

PRIVATE

10

* Not a Final Disposition5858


2011 FISCAL YEAR

2012 FISCAL YEAR

2013 FISCAL YEAR

2014

Cases Pending (Beginning FY/Ending FY) 503/430 430/564 564/584 584/636

Cases Filed 1119 1216 1132

1136


% of Cases Disposed 106.5% 86.27% 97.79% 94.63%

Average Age of Cases Disposed 5.66 Months 5.3 Months 6.1 Months 5.37 Months



Criminal Conviction

0 0 0 0


0 0 0 0


5 3 5 6

Sanction:

Public Censure

0 0 0 0


0 0 0 0

Public Reprimand

1 1 0 8

Public Warning

2 1 1 2

Public Admonition

3 5 0 1


1 1 0 3

Private Reprimand

3 12 6 2

Private Warning

3 3 5 4

Private Admonition

8 6 6 12


12 9 6 15


0 0 0 0


1 4 6 5

Interim Disciplinary Action:

Order of Suspension [15(a)]

1 3 7 3


0 1 0 0

Cases in Formal Proceedings

0 0 0 0

Amicus Referral

0 0 0 0

Dismissals

1154 1004 1068 1016


226 107 80 67


0 2 1 2


226 118 79 60

Pending

16 3 7 5

Cases Appealed to Special Court of Review 1 3 1 0

Informal Hearings Set 13 9 9 14


11/17/14 5959

6060

6161

6262

6363

6464

6565

6666

6767

6868

6969

7070

Public Records Request

7171

7272

7373

7474

7575

7676

11 QJ11 liforni11

Oiommissiott on Jju!liciaJ 455 Qf)olben Qf)ate J\6em1e, 14400

Jlf rnnc:isco, QIJ\ 94 lll 2-3 660

Karl Olson, Esq. Law Offices of Ram, Olson,

Cereghino & Kopczynski 101 Montgomery Street, Suite 1800 San Francisco, CA 94104

Dear Mr. Olson:

(415) 557-1200 FAX (415) 557-1266

Web Site: http://cjp.ca.gov

February 26, 2016

This responds to your letter dated February 12, 2016, designated Records Request," received by the Commissioi1 on Judicial Performance on 16, 2016. Yqur request seeks records relating to commission expenses and maiuigeme'nt' as well as records regarding complaints concluded in 2015 and public discipline imposed by the commission between 2010 and 2015.

As your letter correctly notes, the commission is exempt from the <:;:alifornia Public Records Act (Gov. Code, § 6252(f)) and is not covered by California Rules of Court, rule 10.500, which relates to public access to comt records. Further, the commission is not a "local agency" or the "legislative body" of a local agency and is not subject to the provisions of the Ralph M. Brown Act regarding public meetings. (Gov. Code,§§ 54951 , 54952.) It is also exempt as an article VI agency from the Bagley-Keene Act (Gov. Code, § 111 21.1.) Accordingly, the commission is not required to provide records under those provisions.

1n addition, numerous constitutional provisions protect commission records relating to complaints and cases involving judges from disclosure. "The commission may provide for the confidentiality of complaints to and investigations by the commission." (Article VI, § 18(i)(1 ).) "The Commission on Judicial Performance may ... [ir:J (3) publicly or privately admonish a judge or former judge[.]" (Article VI,§ 18(d).) While the commission is required to turn over to the Governor of any State of the Union, the President of the United States or the Commission on Judicial Appointments " the text of any private admonishment, advisory letter, or other disciplinary action" concerning a judge who is under consideration for a judicial appointment, the constitution expressly provides that " [ a ]ll information released under thi s section shall remain confidential and privileged." (Article VI,§ 18.S(a)-(d).)

.. . l

Amendments to California Constitution, r,rticle i , section 3 I egarding pub,lic access to meetings of public bodies and the writings of public officials and agencies expressly provided

7777

Mr. Karl Olson February 26, 2016 Page Two

that nothing in the provisions superseded or modified any constitutional provis ion, or affected the construction of any statute court rule, or other authority to the extent it protects the constitutional right of privacy. (Article 1, § 3(3), (4).) They also c:xpressly provided that nothing in the provisions repealed or nullified, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies in effect on the effective date of the amendments. (Article 1, § 3(5).) These provisions manifest clear intent to preserve the statutory exemption of the commission from the Public Records Act, the Ralph M. Brown Act and the Bagley-Keene Act and to preserve the confidentiality provided under the constitution for certain commission records and actions.

While the commission is not required to release the records you seek and declines to do so under the foregoing provisions, some of your raise issues that l believe should he considered further by the commission. I hope that these issues can be addressed by the commission at its March 23-24, 2016 meeting and that I will be able to get back to you shortly after the meeting.

Thank you for your continued interest in the work of the commission.

Yours very truly,

Victoria B. Henley Director-Chief Counsel

VBH:al/Public Records Act Request/2-26-16 Olson

7878