Commentary: State auditor blocked in seeking judicial records

State Auditor Elaine Howle has a fearsome reputation for tunneling deeply into public agencies and finding nuggets of information that officials would prefer to remain hidden.

Recently, for instance, the Legislature directed Howle to delve into the complex finances of the University of California, and its cloistered executives, especially President Janet Napolitano, went into full DEFCON 1 mode.

Eventually, Howle learned that responses to her inquiries of officials at individual UC campuses were being routed through Napolitano’s top aides and sanitized of criticism before being forwarded to the auditors.

Howle blew the whistle on the laundering, two top executives walked the plank by resigning and the UC president was admonished by the system’s Board of Regents after taking semi-responsibility. The audit, meanwhile, determined that Napolitano was sitting on a $175 million secret stash of cash.

With that incident still reverberating, Howle finds herself in another faceoff with another agency over access to its secrets.

Responding to complaints from judicial reform groups, the Legislature authorized Howle to take a critical look at the Commission on Judicial Performance, a little-known agency charged with investigating complaints against judges and disciplining them when warranted.

Reformers contend that the CJP, which has been in business since 1960, is lax in investigating allegations of judicial misconduct but masks its poor performance by making virtually all of its actions secret.

Occasionally, the commission does publicly announce some disciplinary action, usually when the conduct involved is already well known. But under the constitutional sections that establish the commission’s authority, it has the sole power to decide what is and is not public.

Therefore, when Howle’s auditors came calling, seeking records on individual cases, the CJP balked, contending that even though state law gives her access to confidential records of public agencies, that access is trumped by its constitutional authority.

The commission took the unprecedented step of suing Howle and on Dec. 19, San Francisco Superior Court Judge Suzanne Bolanos issued an order thwarting Howle, saying she “has no legal right to access the CJP’s confidential records.”

This is a rather fascinating conflict on several levels.

For one thing, as Judge Bolanos declared, it touches on the separation-of-powers issue. Can one branch of government – in this case the Legislature through Howle – rummage through the secrets of another, the judiciary?

Howle has already done so, in a sense, by excoriating the State Judicial Council, the policymaking arm of the Supreme Court, for its disastrous foray into a centralized case management system. And she didn’t hesitate to hammer UC, which is also constitutionally independent, for its financial mischief.

From a public policy standpoint, there is – or should be – no reason to shield CJP’s performance from scrutiny, especially since Howle’s authority to examine confidential records includes a caveat that none will be revealed to the public. She and the Legislature are legitimately interested in whether the CJP is doing its job, not in airing the dirty linen of individual judges.

Furthermore, it may be a fundamental conflict of interest for any judge – in this case Judge Bolanos – to side with the CJP when it invokes secrecy about judicial misbehavior.

That said, Bolanos may be legally correct in saying that the CJP’s constitutional authority supersedes Howle’s statutory authority.

If so, however, the Legislature needs to resolve the issue by elevating the auditor’s authority to constitutional status or otherwise making it clear that no agency can escape scrutiny, especially one supposedly protecting the integrity of the judiciary.