A hush-hush settlement will — at last — allow the State Auditor to look into the vetting and disciplining of bad California judges

 

CJP v. CA State Auditor The Recorder + CPPA cotin.org
On 29 September, only Google served up this article about the settlement in The Recorder (left), and a report about it on the web site of the California Protective Parents Association (right)

Anyone reading this post is being let in on a secret. Unless the leading search engines can no longer supply reliable results, search queries reveal that not a single newspaper has so far reported that the chief obstacle to independent scrutiny of the Commission on Judicial Performance (CJP) — whose job is to vet and discipline California judges against whom complaints have been filed — was removed two weeks ago.

This media silence is bizarre, to say the least. There was a blizzard of headlines last December about the CJP’s successful obstruction of a probe into its methods and records, after it sued to block the State Auditor, Elaine Howle, from carrying out this task. National and regional newspapers reported that a trial judge in San Francisco had ruled in favour of the CJP. In an editorial titled ‘Who judges the judges?’ the San Francisco Chronicle described the CJP’s insistence that its operations be treated as ‘secret and untouchable’ as ‘indefensible’ — but said that its court victory showed that this stance was nonetheless ‘working so far.’

The Auditor appealed against that judgment. In the settlement of the appeal on 18 September, both sides agreed that the trial judge’s ruling should be reversed in full. Also, that the Auditor’s office will be allowed to inspect the CJP’s confidential records of how it went about investigating criticism of the performance of judges by litigants and lawyers.

This will be the very first time in the fifty-eight years of its existence that the CJP will be subjected to an audit, even though it subsists on taxpayer contributions.

How did COTIN learn about this most welcome development, even if it is only a partial victory for transparency — because the Auditor will not be able to tell the public exactly what it finds in those records? By the sort of discovery that can follow from nonstop mental churning about an experience as horrific as being the plaintiff in a trial as surreal as the one on which this site is focused; a trial conducted by a San Francisco judge who — as she has explained — simply felt like a change from criminal law to hearing civil law cases, a switch for which she had no qualifications or experience whatsoever. In other words, a trial that was a travesty of the obligation of lawyers and judges, in their very own professional code, to ensure due process and the correct application of the law — or offer remedies for a failure to do so in a court of appeal.

Typing ‘cjp v california state auditor’ into a Google search box in the early hours of last Saturday yielded just one link to news and information about the settlement. It pointed to the website of the California Protective Parents Association (CPPA), a campaign for protecting children from mistreatment, which alleges that the CJP ‘has been dismissing valid complaints [against judges], which allows for abuse, including sexual abuse, of children.’ The CPPA’s post on the conclusion of the fight between the CJP and Auditor contained a link to the site of The Recorder on law.com — which led to a subdued official record of it on the California government’s site dedicated to supplying information about appellate cases, and to the text of the six-page settlement agreement. Neither the CPPA nor The Recorder came up in search results for the identical query on Bing or DuckDuckGo.

Stop and think about what this means for a moment. Just one search engine, Google, and one intelligent web site with — apparently — no professional publishers, journalists or editors behind it, have so far revealed that the people of California can now assist and look forward to a comprehensive assessment of the CJP’s objectivity and trustworthiness.

How can this be possible?

The most likely explanation is that there has been no press release to alert media to the settlement by either the office of the Auditor or the CJP — as nothing of the kind is listed on the web site of either organisation (on the evening of Sunday, September the 30th).

Why might that be?

Perhaps because, in an apparent face-saving measure, page 4 of the settlement terms includes these words: ‘[N]either party shall claim that they “prevailed” on the appeal or that the reversal was anything other than a stipulated result reached after settlement discussions.’ [ emphasis by COTIN ]

Californians must keep a close eye out for signs of the legal profession’s matchless record for undermining and reversing attempts by the public and its guardians to rein in its tendency to behave as if it is above correction and reform. So must anyone else who cares that for guidance about reform, so-called banana republics and kangaroo courts around the world look to this state rich enough to become a shining model of justice.

Consider — aside from the missing press releases about the settlement — these reasons for concern:

  • Information and news about the settlement is sinking in search results, or disappearing entirely, when it should be rising to the top. Forty-eight hours later, the two links to news of the deal that Google was supplying in the early hours of Saturday are not appearing in results for the original query, ‘cjp v california state auditor’. In fact, there are no results on the first two pages of links — with those or other obvious search terms.
  • Bad news for transparency. On 17 September — not insignificantly, the last day before the settlement was released — Governor Jerry Brown signed a bill that bars the Auditor from releasing to the public any confidential records of judicial misconduct that its investigators find in the CJP’s files.
  • An example of the lengths to which judges can go to evade control. In a riveting scholarly paper in the Hastings Law Journal about so-called ‘unpublished opinions’ — also referred to as the ‘no-citation rule,’ because they cannot be cited as legal precedents — Rafi Moghadam has shown how these came to be used frequently by courts of appeal to conceal cover-ups and minimise the likelihood that their vetting of lower court decisions will be reviewed by the California Supreme Court. He demonstrates that this labelling of judicial decisions is a device invented by appellate justices in the 1970s to thwart oversight. Its introduction subverted the demand by California voters, as long ago as the late 1800s, that appellate courts write down, publish and be held accountable for the reasoning behind their judgments. A written opinion that somehow both does and does not exist is just a devious means of averting responsibility for decisions committed to print — and now in such wide circulation, on the internet, as to make nonsense of any suggestion that they are not published. 

There is a warning that could be warranted in the post on the CPPA website urging complainants who believe that they were let down by the CJP — when they sought its help with bringing a judge to book — to submit their evidence to the Auditor. They should check that in the two years in which the audit was delayed by the legal battle, their files were not mysteriously induced to disappear and are still part of the CJP’s records. 

 

8 thoughts on “A hush-hush settlement will — at last — allow the State Auditor to look into the vetting and disciplining of bad California judges

  1. Thank you for this useful and insightful article. I can only imagine that the lack of publicity and presence on search engines is because these venues are regretably monitored or controlled as the internet is changing so much. Everything seems to be controlled with algorithms we cannot begin to understand. It all always goes back to power and greed, that we do know.

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    1. Thank you, Lucinda, I am especially glad that you found reading it useful because I am doing all I can to fill the void — the stunning lack of detailed narratives about what litigation is like. We all know that in a general way — enough to avoid it if we possibly can, as I certainly did for most of my life. But what happens when you have no choice — are forced to assert your most basic rights, but have no idea of how to cope and what lies ahead?

      On the search engines, yes indeed — and if money and power don’t determine how the algorithms are set and adjusted, I think that the search engine companies do have to tell us what criteria — or principles (if that word isn’t completely out of place) — dominate.

      Google has a feedback button at the bottom of the first page of search results for queries (perhaps all the pages — I haven’t checked). What if everyone who reads this post clicks on it to fill in the comment box there to say how disappointed we are not to find any links to the latest information on the CJP v. State Auditor battle?

      I last checked an hour ago. There is nothing more recent than a link or two to items from this summer, and most of the links on pages 1 and 2 of what Google, Bing and DuckDuckGo supply have 2017 dates. This strikes me as disgraceful.

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      1. It strikes me that the masses are clueless because of everything in general and are too harried and exhausted to find out. I also think that this is a volatile can of worms and because nothing is private on the internet people may be reticent about poking the sleeping dragon, which is somewhat like the emperor with no clothes that no one notices. I am glad to know about the feedback button on google though. I have found a general shift in responses to searching, where the the results have less quality or authenticity and lack credibility. They are random and from doubtful sources(in the pursuit to avoid the fake news!)

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      2. Sorry for the long delay in rescuing your comment from the spam queue. There is something wrong with my comment alerts — and I have to check my settings to see why your second post didn’t sail through — as contributions by ‘approved’ commenters are meant to. Could be my fault, for not checking my WordPress dashboard earlier. … Yes, people in general are too overwhelmed to pay attention to everything we should be watching with an eagle eye. But why haven’t the media been keeping tabs on new developments in this story that the San Francisco Chronicle, the San Jose Mercury News, the San Diego Tribune, Sacramento Bee … etcetera … reported on and editorialised about in 2016 and 2017?

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      3. I think its just because the media, which now pretty much the caliber of what we use to call tabloids, are only interested n the really soapy stuff that cause excitement and drama and sell well. Its almost like “truth” is no longer kosher, like out-lawing “scientific” words/facts in government communications, I mean , its like reverting to the “dark ages”…. It would almost seem that integrity, truth, honor, justice and freedom for all has been shunned and put on the s**t list by those in government and in control of our lives. It is a stranger and stranger world we live in.

        Liked by 1 person

      4. What you say would be consistent with the media no longer covering topics that don’t work well as clickbait. But if that is the chief criterion in deciding whether or not to report on the performance if the judiciary, we are in worse trouble than any of us can imagine.

        The reasons why this settlement hasn’t been covered by well-known newspapers are unclear.

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      5. Well sadly, I don’t think its “personal ” towards judiciary topics, I think it just excludes everything that is not clickbait( good description ) because that is mentality at large , which is all they are concerned with.

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