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Commission on Judicial Performance
Weaknesses in Its Oversight Have Created Opportunities for Judicial Misconduct to Persist

Report Number: 2016-137

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Appendix A

Scope and Methodology

The Joint Legislative Audit Committee (Audit Committee) directed the California State Auditor to examine CJP's policies and practices for investigating complaints against judges and issuing judicial discipline, as well as to provide an overview of CJP's operations. Table A lists the objectives that the Audit Committee approved and the methods we used to address them.

Table A
Audit Objectives and the Methods Used to Address Them
1 Review and evaluate the laws, rules, and regulations significant to the audit objectives. Reviewed and evaluated relevant laws and rules, including historical changes to the California Constitution.

Describe the standards CJP uses and the process it follows in determining the disposition of its cases and how it ensures that the standards are consistently followed.

Determine who within CJP makes the decision as to whether an alleged violation of the ethics code meets the clear and convincing criteria.

Assess CJP's complaint review process to ensure it is meeting its mission and complying with all applicable statutes, policies, and regulations.

Determine whether CJP uses the same criteria at all stages of the complaint process and is taking an appropriate and reasonable course of action for the complaints it reviews and for determining the disposition of each complaint.

  • Documented and assessed CJP's standards and processes and evaluated whether those standards and processes comply with relevant criteria, are reasonable, and have adequate internal controls. We focused our review on complaints submitted against judges and former judges because we noted the complaint process for subordinate judicial officers is comparable to that for judges and former judges.
  • Reviewed case law and determined the commission uses the clear and convincing standard when evaluating whether misconduct occurred.
  • Randomly selected and reviewed 40 complaints that CJP closed at the intake stage during fiscal years 2013–14 through 2017–18. We stratified our selection based on fiscal year and closing reason code. We used these cases to assess whether CJP consistently applied its policies to address this objective and several others below.
  • Randomly selected and reviewed 30 cases that CJP completed investigating during fiscal years 2013–14 through 2017–18. We stratified our selection based on fiscal year and the level of discipline imposed, if any. We used these cases to determine whether CJP complied with its policies to address this objective and several others below.
  • Because CJP investigators did not document investigation strategies, evaluated the 30 investigated cases to determine whether CJP investigators took all reasonable steps to evaluate allegations of misconduct.
  • Evaluated whether correlations exist between the misconduct type and the final discipline, and found no direct, consistent relationships between misconduct type and final discipline.

Describe the standards CJP uses to determine whether or when to contact complainants, witnesses, and judges.

For the last five years, determine the percentage of cases when CJP contacted any of these parties as part of an investigation of a complaint.

  • Documented CJP's standards and practices for contacting complainants, witnesses, and judges.
  • Used CJP's case management system to determine the percentage of cases in which CJP contacted judges during an investigation. Determined the percentage of cases when CJP contacted complainants and witnesses during intake and investigations by assessing 70 intake and investigation files.

Determine when judges are notified about a complaint and whether they are informed of the nature and basis of the complaint and when they will be provided an opportunity to respond.

Determine what information from CJP's investigation is provided to the judge and why certain facts may be withheld by CJP.

In addition, review CJP's process to determine whether judges receive due process from complaint to resolution.

  • Documented CJP's policies and practices for notifying judges of complaints and assessed the information CJP shared with judges in the 30 investigated cases we reviewed to determine whether CJP gave judges an appropriate level of detail about the complaints and whether it gave the judges an adequate opportunity to respond. We also determined what information CJP withheld from the judges and why.
  • Documented when CJP granted extensions for the 30 cases we reviewed.
  • Evaluated CJP's structure and disciplinary process by comparing them to best practices for providing due process as part of overseeing judicial conduct.

Assess CJP's process for evaluating the credibility of evidence, witnesses, and statements made. Furthermore, do the following:

  1. Determine whether CJP considers evidence that would be inadmissible under state law and how it treats hearsay evidence in its consideration of a case.
  2. Determine whether the commission meets or observes witnesses.
  3. Determine the circumstances in which the commission would have the authority to alter the findings of fact and conclusions of law made by the special masters who do observe witnesses.
  • Documented CJP's process for evaluating evidence, including hearsay evidence, inadmissible evidence, witnesses, and other statements. Determined that the commission did not preside over evidentiary hearings and therefore did not observe witnesses on its own.
  • Reviewed case law to determine the commission's process for evaluating and accepting the findings of fact and conclusions of law developed by the special masters.
  • We did not reweigh or determine the admissibility of evidence provided to the commission because this is a matter of judicial discretion.
  • For the five cases that completed formal proceedings during our audit period, compared the findings and conclusions from the special masters to the final disciplinary order. We documented reasons for discrepancies.

Determine what complaint information is provided to the commission and when it is provided.

Assess whether the level of detail is sufficient for the commission to make disciplinary decisions.

  • Documented CJP's process for providing information to the commission, including what information staff provide and when.
  • Reviewed 70 cases and determined whether the information provided to the commission was accurate and sufficient for it to make decisions about the case disposition.
7 Describe the stages in the complaint process at which staff attorneys provide recommendations to the commission and what form they take. For the last five years, determine the number of staff recommendations that were adopted or rejected by the commission and what types of decisions are made by staff as opposed to the commission.
  • Documented and assessed CJP's process for providing recommendations to the commission.
  • Reviewed meeting memos and minutes to determine how often the commission disagrees with staff recommendations on the closure of cases or final discipline of the judges.

Assess whether staff, attorneys, and commissioners have the proper training, qualifications, and experience to review complaints.

In addition, determine the size and composition of CJP's staff and analyze whether the staffing level, training, and qualifications are appropriate for its mission.

  • Assessed the materials that CJP provides to its staff and commissioners as part of their on-the-job trainings or orientations to ensure that key concepts and standards are consistent.
  • Evaluated the resumes of CJP's attorneys and staff and assessed whether they met the minimum qualifications for their positions. We documented their years of experience prior to CJP hiring them and compared the minimum/desirable qualifications, responsibilities, and pay to comparable attorney positions for state agencies. Because government leaders appoint commissioners, we documented the current commissioners' years of experience prior to appointment.
  • Assessed whether the size and composition of CJP's staff is appropriate by analyzing CJP's operations.
9 For formal proceedings, determine whether CJP employs in-house trial attorneys or outside prosecutors, such as attorneys from the Office of the Attorney General. Identify the qualifications, responsibilities, and pay for these trial attorney positions. In addition, compare the costs of employing both types of attorneys and assess whether CJP has a process for determining which type of attorney to use.
  • Documented and assessed CJP's contracts for outside trial counsel employed during our audit period, including the procurement process, and, to the extent possible, compared the cost, qualifications, and responsibilities of the outside trial counsel to the in-house trial counsel.
  • Confirmed that CJP no longer intends to use outside trial counsel and therefore does not have a process for choosing in-house or contracted trial counsel.
10 Review and evaluate CJP's confidentiality rules and the rationale for keeping any type of inquiry or investigation confidential. Documented and assessed CJP's confidentiality rules and confirmed that its rationale for confidentiality is protecting the public and judicial officers. We assessed whether this rationale is reasonable and applies to appropriate documents by comparing CJP's confidentiality rules to those of similar organizations, such as the Medical Board, the State Bar, and comparable judicial discipline commissions in other states.

Review and evaluate CJP's process for investigating legal error and determine the following:

  1. How often CJP investigates legal error.
  2. The standards CJP uses for determining whether a complaint is one of legal error.
  3. Whether the process protects against discipline being imposed for legal error.
  4. CJP's process for investigating complaints where there is not clear legal precedent as to whether or not a judge's conduct violates the ethics code.
  • Documented and assessed CJP's processes and standards for investigating legal error for the 70 cases we reviewed.
  • Attempted to use CJP's data to determine the number of times that complaints involved legal error and the number of times that complaints were closed because of legal error, but determined that because of its imprecise coding, CJP's data do not consistently identify all relevant allegations of legal error. However, we used the available data to identify five judges with complaints closed because of legal error and evaluated whether any patterns, such as demographics of the complainants, might indicate that the legal error was linked to judicial misconduct.
  • Interviewed the legal advisor on CJP's process for investigating complaints when no clear legal precedent exists and assessed CJP's process for the one case we selected in which CJP determined that there was no legal precedent.
12 During the most recent five-year period, determine the number of cases, case-processing times, and case outcome within each stage of CJP's discipline process. Further, evaluate the outcomes of a selection of cases and the discipline imposed by the commission, including cases that resulted in private discipline.
  • Used data to determine the number of cases, case-processing times, and case outcomes at each stage.
  • Reviewed 30 cases of public or private discipline to evaluate whether CJP supported its final disciplinary decisions and consistently followed its processes.

For the most recent five-year period, assess CJP's budget, expenditures, and fund balances.

Further, determine whether CJP's budget for administration and staffing, as well as the average cost of an inquiry or investigation, are consistent with best practices of other comparable organizations.

  • Used data from its budget system to assess CJP's budget and expenditures—including for administration and staffing—and fund balances from fiscal years 2013–14 through 2017–18.
  • The fact that CJP's case management system does not track the hours spent on a case and that CJP does not require its staff to track their time on investigations hindered our ability to develop a precise estimate of cost per investigation. CJP completed 158 investigations in fiscal year 2017–18. Using the salaries of CJP investigators and assuming that the investigators' time on these investigations was spent in that fiscal year, we determined that the average cost of an investigation was $7,900. However, as we explain in Chapter 1, the time investigators spend on cases can range over one year.
  • Compared CJP's budget, expenditures, fund balances, and the average cost of an investigation to those of other judicial discipline commissions and comparable entities. With regard to the average cost of an investigation, we were hindered from comparing CJP to other similar entities because of the imprecision of the cost estimate we developed for CJP's investigations and the limited information we could identify for other organizations.
  • Documented and assessed the risks posed by CJP's outdated case management system and the costs to replace the system.
14 For a selection of cases, determine whether CJP provided all parties, including the judge who was the subject of the complaint, an opportunity to respond with relevant information and to challenge a disciplinary decision if warranted. Further, determine whether and why judges have to sacrifice confidentiality to challenge the commission's disciplinary decisions.
  • Reviewed 30 cases and evaluated whether CJP followed its processes for communicating with judges and complainants about allegations of misconduct.
  • Assessed when CJP's processes may require judges to choose between confidentiality and appealing a disciplinary decision.
15 Review and evaluate CJP's process for reviewing past complaints concerning a judge and how this information is used when investigating a judge should subsequent complaints be filed. Further, determine CJP's record retention policies for past complaints and outcomes against a judge and whether CJP consolidates multiple complaints.
  • Reviewed 30 cases and evaluated whether CJP consistently considers past complaints during investigations and when determining the disposition of complaints.
  • Documented CJP's record retention policy and assessed it for reasonableness by reviewing the justification for its recent policy change.
  • Assessed CJP's processes for consolidating complaints in the 30 investigated cases we reviewed.
16 Over the past five years, determine the number of cases in which a judge was publicly admonished, censured, or removed after having prior admonishments, advisory letters, or complaints closed either with or without investigation. In addition, determine the number of complaints that did not receive a full investigation during the same time period.
  • Used CJP's case management data to determine the number of cases in which CJP publicly admonished, censured, or removed judges after it had previously issued private or public discipline or closed prior complaints without investigation or discipline.
  • Determined how many complaints CJP closed at the intake stage.
17 Determine whether CJP has a process for expediting and deferring complaints. If so, for the past five years, determine the number of complaints expedited or deferred and the reasons for each.
  • Documented CJP's process for expediting or deferring complaints.
  • Reviewed CJP's case management data and identified the number of instances in which commissioners deferred cases. Interviewed the legal advisor and reviewed 30 investigated cases to determine reasons why CJP may defer cases. Reviewed 30 investigated cases and determined how often the commission expedited a complaint.
18 To the extent possible, determine if there are disparities in investigation rates, discipline rates, and budget efficiencies between CJP and similar judicial commissions in other states.Compared CJP's investigation rates, discipline rates, and budget information with those of the judicial discipline commissions from New York, Washington, and Texas. We chose these states for comparison based on factors such as their statewide population, number of judicial officers, disciplinary options, overall budget, and burden of proof. We spoke to the directors from each of these judicial discipline commissions to learn more about their complaint review processes and operations, and we then used each state's public annual report to compare the requested data to CJP's.
19 Review and assess any other issues that are significant to the audit.
  • The start of this audit was delayed by almost two years due to litigation with CJP. To ensure CJP did not alter records during this delay, after the litigation was settled, we tested the completeness of CJP's files using complaint records directly forwarded to us by the public and found no issues. We performed additional work for some of these complaints and either identified no problems with the steps CJP took in response to the complaints or determined that we had generally identified the same issues in other areas of our work.
  • Evaluated the availability of transcripts and recordings in different types of court cases for four superior courts.
  • Reviewed data trends to determine if any risks for bias against particular judges or courts may exist and did not identify any concerning trends.
  • Evaluated CJP's transparency, outreach, and public accessibility.
  • Used CJP's case management data to assess the relationship between the type of complainant and the level of investigation CJP conducts.

Source: Analysis of the Audit Committee's audit request number 2016‑137 and information and documentation identified in the table column titled Method.

Assessment of Data Reliability

The U.S. Government Accountability Office, whose standards we are statutorily required to follow, requires us to assess the sufficiency and appropriateness of computer-processed information that we use to support our findings, conclusions, and recommendations. In performing this audit, we obtained data from CJP's case management system to calculate statistics on complaints against current and former judges. Additionally, we obtained CJP's budget system data and payroll data to identify CJP's annual budget, expenditures, and staff salaries. To evaluate these data, we performed electronic testing of the data, reviewed existing information about the data and systems, and interviewed agency officials knowledgeable about the data. We found that CJP's case management, budget, and payroll data were sufficiently reliable for these audit purposes.

However, during our review we identified a limitation with CJP's complaint data. Specifically, as we discuss in Chapter 1, we found that CJP imprecisely records allegations in its complaint data, often using one code to group allegations of legal error with other complaints that do not allege any legal error. As a result, we found the complaint data were not sufficiently reliable for determining the number of allegations of legal error. Although this determination may affect the precision of some of the numbers we present, there is sufficient evidence in total to support our findings, conclusions, and recommendations.

Appendix B

Additional Information About CJP

We identify our areas of concern with CJP's processes and operations, as well as our recommendations for improvement, in the chapters of this report. In this appendix, we provide answers to questions that the Audit Committee asked us to address that we do not address in the chapters. We present this independently verified information about CJP in a question‑and‑answer format to further inform the Governor, Legislature, and public about an organization that has never before been the subject of an external review.

CJP's Compliance With Legal Requirements

Question 1: Is CJP complying with the statutes and regulations applicable to its review of complaints about judicial misconduct?

Answer: We have minimal concerns regarding CJP's compliance with state law and regulations because very few statutes apply directly to CJP's review of complaints about judicial misconduct. State law exempts judicial branch entities, including CJP, from having to adopt regulations. However, the California Constitution does require CJP to create rules to govern its investigations, and we found that CJP has complied with the rules that it has created.

CJP's Interactions With Complainants, Witnesses, and Judges

Question 2: When does CJP contact complainants?

Answer: CJP contacts complainants by a letter to inform them that it has received the complaint. It also sends complainants a letter when it closes a complaint either with or without discipline. Sometimes CJP will contact the complainant during intake or investigations to understand their allegations or request information.

Question 3: When and how does CJP decide whether it will contact judges?

Answer: CJP does not contact judges for investigations if it determines there is no basis for further proceedings. For example, CJP may disprove the allegations. If CJP concludes that an allegation is not unfounded, it contacts the judge through a formal, mailed letter. The letter informs the judge of the relevant allegation and requests a response. Based on our review of 30 investigations, CJP frequently sends this letter near the end of an investigation.

CJP also mails a letter notifying a judge of intended discipline. If this discipline involves an intended public or private admonishment, the judge has the option to appear before the commission to object to the disciplinary decision or demand formal proceedings. CJP also communicates with the judge and the judge's attorney when negotiating settlements. Finally, a judge and/or the judge's attorney can appear before the commission at a public hearing at the end of the formal proceedings process, as Figure 5 in the Introduction shows.

Question 4: What information does CJP provide judges when it contacts them?

Answer: In 21 of the 30 investigation cases we reviewed, CJP contacted the judges involved. In those cases, the letters that CJP sent always informed the judges about the specific nature of the allegations, their right to reply, their right to an extension, and the reasons that the behavior in question—if true—would constitute misconduct. To protect the complainant, CJP also took care not to reveal the complainants' identities. Based on our review, CJP provided sufficient details to allow the judges or their attorney to respond to the allegations.

Question 5: How often did CJP contact judges, complainants, and witnesses during the five years of the audit period?

Answer: Of the more than 800 cases investigated between fiscal years 2013–14 through 2017–18, CJP contacted judges in about 430 of those cases or 53 percent of the time. CJP cannot contact judges during the intake stage. CJP's data do not track how often it contacts complainants and witnesses. Thus, Table B.1 shows the number of times CJP contacted complainants and witnesses from fiscal years 2013–14 through 2017–18 in the cases we reviewed.

Table B.1
CJP Contacts Relevant Parties More Frequently During Its Investigation Stage Than During Its Intake Stage

Parties CJP May Contact Intake Stage Investigation Stage
Number of Cases in Which CJP Could Have Contacted the Party* Number of Cases in Which CJP Contacted the Party Percentage of Cases in Which CJP Contacted the Party Number of Cases in Which CJP Could Have Contacted the Party* Number of Cases in Which CJP Contacted the Party Percentage of Cases in Which CJP Contacted the Party
Complainant 62 18 29% 22 9 41%
Witnesses 21 9 43% 29 23 79%

Source: Analysis of 70 cases CJP closed from fiscal years 2013–14 through 2017–18, 30 of which CJP investigated.

* For the purposes of this analysis, we excluded from the intake and investigations columns cases in which contacting some of the parties would not have been possible. For example, we excluded anonymous complaints as well as complaints CJP opened using its oversight authority.

During the intake phase, CJP attorneys may contact only the complainant's attorney as a witness.

Question 6: Does CJP give judges adequate time to respond during investigations and does it grant extensions?

Answer: We found that in the cases we reviewed in which CJP contacted judges, it provided ample time for the judges to respond. Additionally, judges—sometimes through their attorneys—almost always filed responses to CJP's allegations. CJP's rules provide judges 20 days to respond and allow them to request an extension if they need more time. In the cases we reviewed, judges frequently requested extensions, and CJP almost always granted them. We noted only two cases in which CJP denied judges' additional extension requests after it had already provided them extensions. In the 30 investigation cases we reviewed, the total time of extensions to respond ranged from seven days to 95 days.

CJP's Review of Complaints and Issuance of Discipline

Question 7: How long does it take CJP to review complaints?

Answer: Table B.2 shows the average months between CJP receiving a complaint and closing a complaint for categories of complaints closed by outcome.

Table B.2
The Length of Time Between Complaint Receipt and Closure Is Dependent on the Complaint Outcome
Fiscal Years 2013–14 Through 2017–18

Complaint Outcome Total number of complaints closed Average number of months between receipt and closure
Closed Without Investigation 5,143 2 months
Closed After an Investigation With No Discipline 610 12 months
Closed After an Investigation With Discipline 198 18 months

Source: Analysis of data from CJP's case management system.

Note: These numbers represent consolidated complaints. CJP closed more than 7,400 unique complaints over this time period.

Question 8: How often does CJP expedite or defer complaints?

Answer: In the 30 investigation cases we reviewed, we identified two instances in which CJP expedited complaints. CJP expedited one complaint because it maintains a practice of expediting complaints that presiding judges submit and the case file records did not explain why it expedited the other.

Out of the more than 800 complaints it investigated and closed during fiscal years 2013–14 through 2017–18, CJP deferred 65. The legal advisor stated that CJP primarily defers complaints to protect the integrity of judicial decisions in the underlying cases. In other words, if CJP started investigating judicial misconduct while a complainant's case with that judge was ongoing, CJP's investigation could unduly influence the case. Additionally, CJP may defer complaints because cases are under review by appellate courts or because it does not want to influence related investigations or proceedings.

Question 9: Does CJP consolidate complaints?

Answer: CJP consolidates complaints at times. According to the supervising administrative specialist, if it receives multiple complaints against a judge that contain similar allegations, CJP consolidates those complaints into a single case. Moreover, she stated that if CJP receives multiple individual complaints against a judge regarding different matters, it sometimes consolidates those complaints. The supervising administrative assistant stated that CJP cannot consolidate complaints that involve different judges. We observed that CJP followed these practices for the complaints that we reviewed.

Question 10: Does the commission receive sufficient information for it to make decisions and what information does it receive?

Answer: The commission generally receives sufficient information in memos or reports that CJP's attorneys prepare for each case and at each stage in the complaint review process. Each memo at the intake and investigation stages includes a summary of the allegations, prior discipline if applicable, legal analyses that CJP's attorneys have developed, and recommendations. Memos also include background on the judge, such as the judge's age and years of service, and may include prior complaints that the attorneys have determined are relevant to the current allegations. During the investigations we reviewed, the attorneys generally also included the steps that they took and any other allegations they discovered. Although we identified minor issues in six of the 70 intake and investigation memos we reviewed—such as the memos not specifically mentioning certain allegations—it is unclear whether these isolated issues affected the commission's decisions in the broader context of multiple allegations and complex investigations.

Additionally, the commission receives briefs during formal proceedings from CJP's trial counsel and the judge's attorney, as well as the report from the special masters. These reports include adequate information to understand each party's perspective on the findings and conclusions related to each allegation of misconduct. The commissioners also have access to CJP's full files during their meetings and memos from the legal advisor.

Question 11: Does CJP support the disciplinary outcomes of its cases?

Answer: Yes. In the 19 cases of private admonishment and 11 cases of public admonishment that we reviewed, we found that the commission supported the disciplinary decisions it made. The commission's policy declarations state that in determining the appropriate level of discipline for a case, it will consider several factors related to the characteristics of the misconduct and the service and demeanor of the judge. Ultimately, the commission has the discretion to determine which of these factors are applicable to a case.

Question 12: What does CJP do if it receives a complaint for which there is no clear legal precedent as to whether the judge violated the ethics code?

Answer: We observed one case in which CJP investigated conduct that was not clearly defined as unethical by any legal or commission precedent. According to the investigator, the question at hand concerned whether a judge should have recused themself from a case in which it may have appeared the judge had a vested interest. Although the intake attorney believed that the alleged conduct might have been improper, the investigator concluded that a lack of precedent existed to make this determination. The commission closed the matter and referred it to the California Supreme Court Committee on Judicial Ethics Opinions (ethics committee) for an opinion. The ethics committee is a panel of judicial officers that is authorized to provide advisory opinions on questions of judicial ethics but that cannot issue discipline. The ethics committee later issued guidance on its website that advised judges to avoid the behavior alleged in this particular case.

Question 13: What is the commission's process for handling hearsay evidence?

Answer: Hearsay evidence is evidence of a statement that was made by someone other than the witness who is testifying at the hearing and that was offered to prove the truth of the matter asserted. CJP's rules require that the California Evidence Code apply to all hearings before the commission or the special masters. The California Evidence Code states that except as provided by law, hearsay evidence is inadmissible. As a result, CJP process and rules would not allow it to admit hearsay evidence in its consideration of a case unless the law permits it to do so.

Question 14: Does CJP's process protect against it issuing discipline for legal error?

Answer: Yes. CJP's rules prohibit it from imposing discipline for legal error alone. To impose discipline on a judge who has committed legal error, CJP must also demonstrate by clear and convincing evidence that the legal error resulted from judicial misconduct, such as racial bias. In our review of six cases in which judges received discipline for cases involving legal error, we found that CJP did not issue discipline for only legal error and that other judicial misconduct was present.

Question 15: Do judges have to sacrifice confidentiality to challenge disciplinary decisions?

Answer: Judges have to sacrifice confidentiality in some circumstances. Specifically, judges sacrifice confidentiality when they ask the Supreme Court to review a private advisory letter that was issued by the commission. However, these advisory letters are the lowest form of discipline, and in addition to the judge's right to ask the Supreme Court for review, CJP's rules provide judges an opportunity, when they believe it is necessary, to request that the commission make factual or legal corrections to those letters within 30 days of its mailing to the judge. Unless judges ask the Supreme Court for review, advisory letters remain confidential.

Judges can challenge intended private or public admonishments without sacrificing confidentiality by requesting to appear before the commission in a closed session to object to the intended discipline. By appearing before the commission, judges waive their right to formal proceedings and a review by the Supreme Court. Alternatively, judges can demand that matters go through formal proceedings, which is a public process that the commission can also initiate. Judges can challenge the commission's decision to retire, remove, censure, or admonish them by petitioning the Supreme Court for review of their case. Judges who choose to do so after formal proceedings do not sacrifice confidentiality because formal proceedings are already open to the public.

Finally, we determined that CJP never initiated formal proceedings followed by a private admonishment, meaning that CJP never disclosed allegations of misconduct to the public and then issued private discipline.

CJP's Trial Counsel

Question 16: Does CJP use in-house or contracted trial counsel for formal proceedings?

Answer: CJP hired an individual as trial counsel in 2015. Before hiring him, CJP contracted with two individuals to act as trial counsel for its formal proceedings.

Question 17: What are the qualifications and responsibilities for CJP's trial counsel position?

Answer: The minimum qualifications that CJP established for its trial counsel position included membership in the State Bar, at least eight years post-bar experience, and substantial criminal or civil trial experience. Further, CJP listed appellate experience as a desirable qualification. CJP hired an individual with State Bar membership and 18 years of substantial trial experience, including appellate experience, for its trial counsel position. Trial counsel serves as examiner in the trial phase of commission proceedings, which includes presenting evidence that supports charges brought by the commission and responding to the evidence and witnesses introduced by respondent judges. Trial counsel also handles post‑hearing appearances before the commission and represents the commission in any review by the Supreme Court.

Question 18: What are the comparative costs associated with CJP maintaining in-house trial counsel versus using contracted trial counsel?

Answer: The average costs varied greatly between its two contracts for external trial counsel. Although one contractor cost CJP an average of less than $5,000 monthly, the other cost an average of more than $18,000 monthly. CJP's current in-house trial counsel costs an average of $20,000 each month. Regardless of the cost, CJP retaining in-house trial counsel is likely more effective than contracting for this service. In-house trial counsel has a better opportunity to develop expertise in CJP's processes and proceedings, which are unique. Additionally, an increase in formal proceedings over the last three years also justifies CJP using an in-house expert because that expertise can allow in‑house trial counsel to manage these cases more efficiently than contracted trial counsel.

Question 19: Does CJP have a process for determining whether to use in-house or contracted trial counsel?

Answer: No. The supervising administrative specialist stated that CJP has no plans to use contracted trial counsel again and therefore does not have or need a process for deciding when to choose in-house or contracted trial counsel.

CJP's Operations

Question 20: What is CJP's record retention policy for complaints and outcomes against judges?

Answer: CJP's policy is to retain all files related to cases for which it has issued discipline. Its policy is to retain files for those cases closed without discipline for 13 years for municipal judges, superior court judges, and subordinate judicial officers, and to retain these files for 19 years for appellate or Supreme Court justices. Based on our review, this policy is reasonable.

Question 21: Is CJP's confidentiality policy reasonable?

Answer: Yes. CJP has established reasonable confidentiality rules that it states are intended to protect the confidentiality of complainants and witnesses and to protect judges from damage to their reputations from unfounded complaints. CJP's confidentiality rules are generally comparable to the practices of the other disciplinary entities we reviewed, including the New York, Washington, and Texas judicial discipline commissions, the State Bar, and the Medical Board.

Question 22: Do CJP's attorneys, commissioners, and staff have the proper training, qualifications, and experience to review complaints?

Answer: Yes. CJP's attorneys meet or surpass the minimum qualifications related to prior legal and courtroom experience for each of their classifications, with an average of 15 years legal experience before they joined CJP.

We compared CJP's attorney positions to similar positions in other state agencies and determined that CJP's attorney qualifications are generally comparable. The supervising administrative specialist stated that the director guides new attorneys through CJP's procedure manual and their positions' respective manual—intake or investigations—and provides additional reading materials such as previous CJP decisions. She also stated that the director works with new attorneys on their first assignments, and that they attend the annual Association of Judicial Disciplinary Counsel conference.

The commissioners are appointed as members of the commission—three of whom must be judges, two attorneys with ten years of experience practicing law in the State, and six citizens who are not judges, retired judges, or members of the State Bar. There are no other qualifications specified in the California Constitution for the role of commissioner. Nevertheless, the commissioners had an average of 20 years of professional experience across diverse fields. The supervising administrative specialist told us that CJP provides an in‑person new member orientation for commissioners. The orientation materials cover topics such as CJP's background and governing authority, procedural overview, and determining misconduct. She also said commissioners attend the three-day National College for State Courts Center for Judicial Ethics conference biennially.

Although they do not review complaints, CJP administrative staff also meet or surpass the minimum qualifications for their positions.

A Comparison of CJP to Other States

Question 23: How does CJP and its operations compare to other states?

Answer: Table B.3 presents the data that we collected for informational purposes; however, because there were significant limitations in our ability to compare the states we reviewed, we determined that we could not use this information to support findings and conclusions in our report.

Table B.3
Fundamental Differences Make Comparing CJP's Data to Other States Imperfect

CJP New York State Commission on Judicial Conduct Texas State Commission on Judicial Conduct State of Washington Commission on Judicial Conduct
Concerns About Comparisons* Requires clear and convincing evidence that misconduct occurred.

Issues private and public discipline.
Lower burden of proof for evidence than CJP.

All disciplinary action is public.
Lower burden of proof for evidence than CJP.

Issues private and public discipline.
Requires clear and convincing evidence that misconduct occurred.

All disciplinary action is public.
Budget for Fiscal Year 2017–18 $4,965,000 $5,600,000 $1,175,000 $1,340,000
Authorized Staff Positions 24 41 14 9
Judges in State 1,800 3,150 3,800 550
Data Below From Calendar Year 2017
Complaints Received 1,670 2,140 1,535 440
Investigation Rates 9% 8% 41%
Total Discipline Issued 39 16 51 5
Discipline Rates 2% 1% 3% 1%
Public Discipline Rates 13% 100% 51% 100%
Private Discipline Rates 87% Not Applicable 49% Not Applicable

Source: Analysis of publicly reported data from CJP, New York, Texas, and Washington and the state laws for each commission.

* According to other states' annual reports, unlike in California, not all judges in New York and Texas are required to be lawyers, further precluding meaningful comparisons.

For consistency across compared states, we calculated the discipline rates by dividing the total discipline issued by the complaints received.

Because of differences in its reporting, we were unable to determine an investigation rate for Washington that would be comparable to those performed by CJP and other states' commissions.

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