California Commission on Judicial Performance Reiterates Its Circular Argument In Lawsuit Against State Auditor

          The California Commission on Judicial Performance (CJP) is the state agency charged with overseeing the ethics of nearly eighteen hundred California judges and justices. In August of 2016, the California legislature directed State Auditor Elaine Howle to audit the CJP. In October of 2016, the CJP filed a lawsuit against the Auditor to obstruct her ability to investigate their performance.

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          The purpose of audits is to provide guidance to government agencies, including commissions, so they may perform better in the future.  But litigious-time-and-money-wasting CJP wants no guidance of their performance. The amount tax dollars being put to poor use by CJP’s attempt to stop the long overdue  investigation of their questioned-performance is well into the six figures.

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          Not only has the CJP hired a private law firm to represent them, they have forced the State Auditor to have to do the same. Public-funded money and man-hours that should be used by the CJP and the Auditor to do their jobs, are instead being applied to the stonewalling lawsuit brought by the misguided state agency, CJP.

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          The Auditor’s latest brief was submitted on September 22nd.  It and its exhibits tell the tale of the CJP being dysfunctional for decades and in dire need of overhaul and guidance. The CJP has existed since 1960 and has never been audited. (Above link may take a few seconds to open. It’s a 200+ pg pdf)

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          CJP’s latest brief was submitted on September 29th.  It is essentially a rehash of their prior briefs’ and oral argument’s reiteration of the same circular logic.

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          Basically, their argument is that they cannot be comprehensively audited because they made up a rule which they claim forbids it. They argue that there can be no exception that they are the exception to the rules which govern auditing the conduct of agencies  — because they wrote rules which govern auditing the conduct of judges.

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          In this latest brief, the CJP has dropped a prior alleged reason that the Auditor cannot see their confidential case files.  In prior briefs they were arguing that she might share them with the public, and they could not enable that to happen. When that feigned-fear to stop the audit proved unrealistic and not based on any facts; they continued on with misleading statements that the California Constitution will not allow an audit of their performance.

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          CJP’s illogical logic is based on twisting the meaning of California’s Constitution by redefining words to fit their agenda. As I understand it, their argument hinges upon misrepresenting the word “by” to mean “of” for the purpose of overstepping their constitutionally mandated authority.

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          They write that the California Constitution provides them power that “The Commission shall make rules for the investigation of judges. The Commission may [not shall] provide for the confidentiality of complaints to and investigations by the commission.”  Yet, nowhere does the Constitution state that the CJP shall (or even may) make rules for investigations of the commission.

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          There is a reason that Abraham Lincoln’s words “government of the people, by the people, and for the people” are still frequently quoted today.  It’s because the words “by“, “of“, and “for” have important different meanings and should not be permitted to be misrepresented as meaning the same when describing roles of government.

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Circular-Logic-600x462

           It’s a crime in California to obstruct a state audit.  Yet the agency whose charge includes punishment for judges who commit crimes, is trying to obstruct a state audit.

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          It is not even close to plausible that the Constitution and its amendments ever had the intent that a state agency could write rules which say their performance cannot be investigated by audit, unless they say it can.

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          It’s outrageous that a state agency with “performance” its in name, filed a lawsuit to derail evaluation of its performance.

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          Even more outrageous, that same state agency that is charged with investigating California judges so they do not obstruct justice in courts, filed a lawsuit in a California court seeking that a California judge obstruct investigation how CJP investigates California judges.

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          One can’t help but wonder if CJP filed this suit hoping that California judges would surely rule the performance of their watchdog could not be audited, so that the pattern of ignoring valid citizen complaints against judges could not be seen by the Auditor’s eyes.

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          I’ve read all the briefs and declarations in this case. They are online at the San Francisco Superior Court website civil case number CPF16515308.

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          I have not found even one sentence which supports the concept that the Constitution’s intent could honestly be interpreted to mean that the CJP was given authority to obstruct an investigation of their performance. Their constitutional mandate allows them to make rules of how judges are to be investigated — not to make rules of how they are to be investigated.

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THE UPCOMING HEARING

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          November 3, 2017 at 10 am is the date and time of the upcoming hearing in the matter of the Commission on Judicial Performance v. State Auditor Elaine Howle, et.al.  It is calendared to take place in Department 504 of the San Francisco Superior Court. The Honorable Judge Suzanne Bolanos is scheduled to preside.

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          Beginning at around 8:30 or so, some of us will be having donuts and o.j. in the park across from the courthouse. Anyone is welcome to come join us and have a donut (til they run out). It’s not a rally with speeches or anything like that.

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          It’s just an oppotune time to chat with others who will be at the courthouse to help Judge Bolanos see that the long-overdue-audit of CJP’s less-than-stellar-performance is a matter of great public interest.

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Hope to see you there!

Sharon Noonan Kramer   snk1955@aol.com

This entry was posted in Civil Justice, Environmental Health Threats, Fourth District Division One Appellate Court and tagged , , . Bookmark the permalink.

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