Summary

Audit Highlights . . .

Our audit regarding CJP's processes for investigating and disciplining judges highlighted the following:

» CJP's investigators failed to pursue allegations thoroughly and ignored warning signs of ongoing misconduct.

In about one-third of the cases we reviewed, investigators did not take all reasonable steps—interviewing witnesses, obtaining evidence, or observing the judges—to determine the existence or extent of alleged misconduct.
CJP does not evaluate its complaint data to identify potential patterns of judicial misconduct that could merit investigation.

» CJP's structure and disciplinary proceedings are not aligned with judicial discipline best practices.

Commissioners are involved in both the investigatory and disciplinary functions, resulting in judges facing potential discipline from a body of commissioners that is privy to unfounded allegations of misconduct.
CJP's reliance on judges to hear cases involving their peers falls short of the voters' intent to increase the public's role in judicial discipline with the passage of Proposition 190 in 1994.

» CJP has not taken important steps to improve its transparency and accessibility to the public.

It has rarely directed its outreach activities toward members of the public—out of more than 120 events held during a five-year period, only three targeted the general public.
CJP only accepts complaints submitted through the mail instead of allowing for more convenient submissions through its website.
CJP never holds public meetings to discuss its rules or operations.

» Significant changes are necessary to improve CJP's processes for investigating and disciplining judges.

Changing its structure and operations would require an amendment to the California Constitution.
It will need additional funding to implement improvements to its internal operations.

Results in Brief

A strong judicial oversight agency is essential to maintain a fair and impartial judiciary that limits the potential for judges to abuse or misuse their power. Since its inception in 1960, the Commission on Judicial Performance (CJP) has been the single agency responsible for investigating complaints of judicial misconduct.¹ CJP's mission is to protect the public, enforce rigorous standards of judicial conduct, and maintain public confidence in the integrity and independence of the judicial system. Its 11 commissioners—consisting of judges, attorneys, and members of the public—discipline judges when CJP's staff prove with clear and convincing evidence that those judges have engaged in misconduct. Judicial misconduct usually involves behavior that conflicts with the California Code of Judicial Ethics (ethics code), which requires judges to diligently, impartially, and properly perform their duties in a way that does not undermine public confidence in the judiciary. However, this audit concludes that CJP has missed opportunities to fully investigate allegations of misconduct, has a structure and processes for discipline that do not align with best practices and falls short of the intent of the voters, and has failed to ensure it is sufficiently transparent and accessible to the public.

We found that flaws in CJP's investigative processes could allow judicial misconduct to go undetected and uncorrected. Examples of alleged misconduct from the cases that we reviewed include threatening to assault litigants, inappropriate comments, and inappropriate relationships with subordinates. When we reviewed 30 of CJP's investigations of judicial misconduct, we determined that in about one-third of those cases, investigators did not take all reasonable steps—such as interviewing relevant witnesses, obtaining necessary evidence, or observing the judges—to determine the existence or extent of alleged misconduct. For example, one case that we reviewed involved a judge who made aggressive and intimidating comments from the bench. Although CJP was able to discipline the judge for some of the allegations in this case, it did not attempt to obtain audio files that may have proved further misconduct. The weaknesses we observed in CJP's investigations are due in part to a lack of key safeguards for ensuring high quality investigations, such as documented investigation strategies and regular managerial oversight.

Because it does not take steps to identify patterns of complaints and initiate investigations when numerous complainants allege similar problems involving a judge, CJP has also missed opportunities to detect chronic judicial misconduct. In one particularly concerning case, CJP failed to identify a pattern of complaints against a judge regarding serious on-the-bench misconduct. Although CJP eventually disciplined the judge for such behavior, it had received complaints for years preceding this discipline and yet missed these signs of potential chronic misconduct. CJP failed to identify these types of patterns in part because it does not periodically evaluate its complaint data to identify when patterns of complaints exist that could merit investigation, even if the individual complaints themselves do not warrant investigations.

Our legal system is based on the principle that an independent, fair, and competent judiciary will interpret and apply the law. The ethics code seeks to ensure such a judiciary by establishing standards for judges' ethical conduct. Therefore, CJP's role as the sole agency responsible for investigating alleged violations of the ethics code is essential to upholding the integrity of the judiciary and public confidence in the judicial system. When it does not conduct adequate investigations, CJP falls short of its fundamental charge.

Additionally, CJP's structure and disciplinary proceedings are not aligned with judicial discipline best practices because the commission currently serves as a unitary—or single—body. Because of this structure, commissioners are involved in both CJP's investigatory and disciplinary functions, and as a result, they are privy to allegations of and facts about unproven misconduct that should not factor into disciplinary decisions. Although it is not identical in nature, CJP's structure is analogous to a jury in a criminal case being composed of the detectives who investigated that case. In contrast, best practices recommend a bicameral—or two-body—structure for judicial discipline commissions. A bicameral structure would have one body responsible for investigating allegations of judicial misconduct while the other would be responsible for issuing discipline.

CJP continues to use judges called special masters to preside over evidentiary hearings, which are the public trial portion of disciplinary proceedings. This practice does not fully realize the intent of Proposition 190, which the voters passed in 1994. Proposition 190 sought to increase the public's role in judicial discipline through reforms that included ensuring that the majority of the commissioners were members of the general public rather than judges or attorneys. However, because these public members do not directly hear evidence or observe witnesses to assess their credibility during evidentiary hearings, judges continue to have a significant amount of influence in CJP's disciplinary process. Since CJP's authority and structure stem from the California Constitution, reforming CJP's structure and requiring the commission to hear its own disciplinary proceedings will require an amendment to the California Constitution.

In addition to issues with its structure, CJP has not taken important steps to improve its transparency and accessibility to the public. Given that CJP has frequently been the object of public criticism, we expected it to have made significant efforts to clearly communicate with Californians about its role and operations but it has not done so. Further, greater public accessibility could allow CJP to better fulfill its mission because it would likely lead to more complaints about potential misconduct. Nonetheless, CJP has rarely directed its outreach activities toward members of the public, does not accept complaints on its website, and never holds meetings that are open to the public. As a result, CJP has missed opportunities to make Californians aware of its existence and the process for complaining about judicial misconduct.

Our review indicates that significant changes are necessary to improve CJP's processes for investigating and disciplining judges and that some of these changes will require providing CJP with additional resources. Although we found that it has unrealized budget savings, CJP will also need a one-time budget allocation to begin implementing improvements to its operations. We estimate that the Legislature should provide CJP with $419,000 in one-time funding to allow it to take the necessary actions of creating an investigations manager position and purchasing a new case management system that has the ability to accept electronic complaints. Further, as CJP works to address our other recommended improvements to its operations, it is likely to receive more complaints of judicial misconduct than it has in the past. For example, if CJP improves its public accessibility it will receive more complaints. Therefore, it will be critical for CJP to regularly assess its operations for efficiencies and communicate with the Legislature during the development of the State's budget each year to request any additional funding that it needs to adequately protect the public.

Summary of Recommendations

Legislature

The Legislature should propose and submit to voters an amendment to the California Constitution to reform CJP's structure and disciplinary proceedings so they are aligned with best practices and ensure that the public has a significant role in deciding judicial discipline.

To ensure that CJP makes critical improvements and has the resources to effectively investigate complaints and discipline judges for misconduct, the Legislature should provide it with a one-time budget increase of $419,000 for fiscal year 2019–20.

CJP

To ensure that it adequately investigates alleged judicial misconduct, CJP should implement safeguards, such as requiring investigation strategies and management reviews.

To ensure that it identifies patterns that may indicate chronic judicial misconduct, CJP should create and implement procedures that require investigators to review all prior complaints when investigating a judge and determine if the prior complaints are similar to the current allegations.

To improve its transparency and accessibility, CJP should take steps to improve its public outreach, accept online complaints, and hold meetings that are open to the public.

Agency Comments

CJP agreed to implement the recommendations we made to it. It also stated it believes that its unitary structure comports with due process and has been approved by the Supreme Court of California.

Footnote

¹ Throughout this report, we use the abbreviation CJP to refer to the agency's 11 commissioners and 22 staff. We use the term commission to refer to the decision-making body of 11 commissioners. Go back to text