Without a Greta Thunberg for assistance, the California Auditor’s best efforts to protect the public from bad California judges seem well on their way to failure

 

16 november 2019 Greta Thunberg arriving - Private Eye No. 1503 August-September 2019 COTIN.org
If only that were true — for victims of judicial misconduct in California ( Drawing in Private Eye, Issue 1503, 23 August – 5 September 2019 )

All the signs so far suggest that COTIN’s pessimism is more than justified — about the likelihood that the deliberately lax, inefficient body charged with disciplining corrupt, incompetent and misbehaving California judges will be reformed urgently, if at all. This site’s gloomy spring and early summer prognostications on that topic followed the publication on 25 April of the California Auditor’s minutely detailed exposé of the workings of that body — the Commission on Judicial Performance (CJP). 

Here are links to essential reading for anyone who wishes to know exactly how the California judiciary has since been evading the Auditor’s diligent attempt to correct injustice, through tactics that fit the judges’ historic tendency to rank ‘protecting their own’ above the public interest:

Shielding judges from public complaints and criticism (but not the public, from bad judges) was immediately given the highest priority

The Auditor, Elaine Howle, has no means of directly or semi-directly translating her organisation’s recommendations for reforming the CJP into action. She has to accomplish that through Sacramento politicians — that is, win the support of members of the California State Assembly. According to The Reporter, in a  29 June article,

A state legislative committee earlier this month issued several proposals, including an amendment to the state Constitution, that would make investigations of alleged judicial misconduct more fair to judges and, at the same time, increase public awareness of a commission that hears complaints about judges and disciplines them, … [ COTIN’s highlighting ]

In view of the seriousness of the wrongs in dire, urgent need of righting — and given that the Auditor’s report was related to the mistreatment of litigants by rogue judges, rather than the reverse — should the committee have made an issue of the sensitivities of the judiciary, at this time? 

Somehow, the CJP failed to meet its deadline for applying for the money it needs to start implementing the Auditor’s recommendations for its reform

According to The San Jose Mercury News on 15 July, in ‘California’s troubled judicial misconduct watchdog may miss key deadlines to improve: Problems could undermine public trust in court system’:

This past April, the much-anticipated California State Audit reviewing the Commission on Judicial Performance (CJP) exposed a crisis in the state’s only judicial oversight agency, which allows for severe judicial misconduct to persist. In order to enact the changes set forth in the audit, the CJP should have requested funding from the State by the June deadline. However, they missed it, using, as executive director Kathleen Russell stated, a  “classic stalling tactic” to continue resisting efforts to change its practices. 

The second stage of California legislators’ investigation of precisely what needs to be done about judicial misconduct was somehow postponed to 2020

In a conventional prelude to action by lawmakers, the Joint Legislative Audit Committee (JLAC) held a hearing in Sacramento on 12 June to discuss the Auditor’s recommendations. It was set for continuation in October, but that did not happen. Katie Guthrie in the office of the committee’s chairman, Rudy Salas, said on 15 October that no date had been set for the next stage of JLAC’s discussion of the CJP, but that she might be able to answer that question for COTIN in December or after 6 January, when the Assembly reconvenes. 

By means explained in earlier entries on this site, California’s judiciary has a centuries-long record for going to extraordinary lengths to frustrate attempts by voters to bring it back into line with the state’s ideals of justice. ( See: ‘… the long-running feud about mythical ‘unpublished’ opinions’)   

What is the solution? 

Probably, the involvement of the youngest California voters.

Mark Zuckerberg, and the WordPress co-founder Matt Mullenweg, whose blogging platform’s home page proclaims that it ‘powers 34% of the internet’  (not excluding COTIN) — were both born in 1984. Their vintage makes their achievements especially astounding, and that is in keeping with the apparent trend for the world’s most effective revolutionaries — whether driven by greed or pure conscience — to be getting younger every year. But if Mark and Matt were computer systems, they would have been consigned to crematoriums decades ago. This would be true if they were not 35 but 25 years old — or the same age as the IT system that the Auditor found the CJP using to process complaints about judges by lawyers and litigants in 2018. As noted on this site last summer, this has meant that instead of accepting complaint forms through email or via a web site, the CJP was using Californians’ tax dollars to pay staff for retyping postal submissions from complainants into its prehistoric IT marvel, keystroke by keystroke.

There is no way to interpret that other than as proof of the lengths to which the judges’ disciplinary authority has gone to avoid disciplining judges. 

Surely California needs a firebreathing activist, an equivalent of 16 year-old Greta Thunberg — nine years younger than the CJP computer system — to emerge from the populace and get to work?

The Center for Judicial Excellence (CJE) in Northern California, founded and run by Kathleen Russell, has been among the most vigorous and prominent campaigners against judicial misconduct in the state — and is widely seen as the principal prod responsible for the official audit of the CJP. 

Child custody rulings outnumber all other cases of alleged misconduct in which the CJE intervenes to assist litigants who believe that they have been hurt by those decisions. Too many are horrific and heart-stopping. It could be appropriate for some of the older children — teenagers — in such cases to model themselves on Ms Thunberg and draw attention to the harm that can be inflicted on families and individuals from judicial benches whose occupants are demonstrably guilty of bias, incompetence, failure to follow the law, or all three.

The September issue of Wired magazine offered this compelling argument for their involvement:

In general, kids start waving signs when adults are slow to act, and, according to Alcides Velasquez, who researches social media and political activism and participation at the University of Kansas, there is a perception among adults that children will be more effective at trumpeting future-looking messages. (Also, as political commentator Tucker Carlson pointed out, it’s harder to justify eviscerating a child for political gain.) That’s only the most cynical piece of Thunberg’s appeal, though. “We learn from observing people who are similar to us,” he says. “If you want young people to get involved, showing them that another teenager can do this type of stuff will be very empowering.” He also notes that youth demonstrations, like the climate marches Thunberg and others have led, put direct pressure on reelection-minded public officials: “They’re going to be voting in three, four, five years, and politicians will be feeling the pressure.”

 

In the quest for justice, we the public look to search engines for sources of good online information about the performance of trial judges — that we mostly do not find

ohn Hyde, an 18th-century British judge in Bengal -- WIKIPEDIA.org image on COTIN.org
John Hyde, an 18th-century judge in the embryonic British Empire in India who carved out his niche in history by promoting judicial accountability, and through his reputation for being incorruptible — distinctions still rare for judges all over the world. Source: oil painting on Wikipedia.org

NOTE TO GOOGLE:

For long interludes in recent months, though fortunately not at present, a malfunctioning algorithm — presumably — has been automatically redirecting would-be COTIN.org visitors to search results for Church on the Rock, a Protestant institution in Indiana unconnected with any information on law, judges, or California courts on this site. No such aberrant behaviour has been triggered by COTIN queries on Bing, DuckDuckGo or the Russian search engine Yandex. It seems reasonable to guess that someone at Google is responsible for creating a rogue algorithm.

If you are given a date for a first court hearing about anything that matters to you, your immediate reaction is likely to be going online to look for information about the judge. Your search will almost certainly be disappointing.

Retaining a lawyer to represent you is no guarantee that your advocate will tell you the truth about what to expect from any judicial officer, because — for reasons explained further on in this post — lawyers tend to be as close-mouthed as judges are, on this topic and most other knowledge about the workings of the legal community.

Unfortunately, judges work to widely differing standards. Those who distinguish themselves as scrupulous upholders of the law — its letter and spirit — stand out across time for their rarity. Search engine-mediated serendipity produces some fascinating examples of paragons. For instance: John Hyde, an 18th-century judge working in a regional power centre in the still embryonic British Empire in India. Apparently an early believer in historical transparency and accountability for judges and courts, his most notable achievement was in the 74 notebooks he used to record details of proceedings over which he and his fellow judges presided. He relied on an idiosyncratic shorthand to conceal his jottings about bench colleagues accepting bribes.

His page in the online encyclopedia says that ‘Hyde gained a reputation as a morally upright judge in a time of general corruption’ — refusing bribes that judges at the summit of the judiciary accepted from the governor in the jurisdiction where he toiled. He ‘was unique among judges in thinking that all individuals … Indians and British alike, deserved the same rights …’ . Just as suspicious of more flattering attempts to compromise his integrity, he also turned down an offer of a knighthood.

The most intriguing fact about him is that several of his notebooks have been spirited away by unknown actors, including a few containing his records of particularly controversial trials.**

To this day, in places a long way from Hyde’s old courtroom, too many judges prefer the evidence about their conduct of trials to be as scarce as possible. As noted in a post earlier this year on COTIN, the recent report by the California Auditor about the operation of the body responsible for disciplining errant judges stated that ‘many courts were responding to budget cuts by eliminating court reporter services.’ It also observed that if that disciplinary panel — the California Commission on Judicial Performance — ‘believes the absence of court transcripts or recordings regularly impedes its ability to conduct investigations, it should expand its efforts to inform policymakers’ about the missing records.

The lack of publicly accessible documents about exactly what trial judges do in courts partially explains why, during the prelude to a judicial election in San Francisco last year, COTIN quoted Jessica Levinson — a professor at the Loyola Law School in southern California — pointing out that:

most people know next to nothing about the judges who they vote for. There are few resources available, even for the minority of civically engaged voters who might want to research their candidates.

Three groups of professionals that might be expected, a priori, to have or be capable of easily obtaining information about judges’ performance — who could fill in yawning gaps in public knowledge — do nothing of the kind:

OTHER  JUDGES

In a 2017 interview with Jed Rakoff — a senior New York judge and legal scholar — published in the journal of the American Bar Association, Joel Cohen — a lawyer who wrote Broken Scales: Reflections on Injustice  — obtained a frank answer to a question about the reluctance of judges to share views and information that might be valuable to the public, even on the general topic of injustice:

JC: You are willing, particularly in your extracurricular writings, to speak out about “injustice.” In my view, judges are in a better position than literally anyone else to speak out on these issues given their experience on the bench, yet many are unwilling to do it.
JSR: I agree. I think what is often overlooked, is that the judicial canons of ethics authorize judges to speak out publicly on matters of importance to the administration of justice and the development of the law. … I think that many judges have the view that it detracts from the public image of the judiciary: unlike political figures, we should be remote; we should be super-cautious. And there’s something to that. There’s a certain amount of reticence that is appropriate. And a second reason is, to be frank, judges who do speak out are spoken of behind their backs by their colleagues as publicity hounds.

LAWYERS

Commenting on that revelation by Judge Rakoff in Psychology Today — in ‘Injustice at the Hands of Judges and Justices’ — Mark Baer, a California lawyer who specialises in mediation, wrote:

I agree completely with Judge Rakoff. However, based upon my experience this applies equally well to lawyers. I know this all too well because I’ve lived it. While I may not have been called a “publicity hound”, a great many of my colleagues bad mouth me behind my back (and sometimes to my face) . Why would most people want to provide valuable information from which people can learn, when they are treated so poorly as a result?

(See ‘The Silence of the Lawyers’ on this site.)

JOURNALISTS AND OTHER MEDIA PROFESSIONALS

This trend in Britain — explained ten years ago in The Law Society Gazette by Joshua Rozenberg  — is unchanged there, and just as evident in the U.S.:

Editors take the view that their readers no longer need to understand why the courts have reached a particular decision.

It was against this background that the lord chief justice expressed concern last week about the decline in coverage of the courts, with local papers in particular no longer sending reporters to hearings.

[…]

‘Just as an independent press can expose the errors made by local authorities and governments, so too, the administration of justice in the courts should be open to the public scrutiny which an independent press provides,’ Lord Judge told journalists.

‘Unless the right has been expressly taken away, your right to be in court is no different to and no less than the right of the lawyers, the advocates, even the judge himself or herself. You are not performing the same function as the judge, but you have a valued function to perform.’

Lawyers and rich litigants can afford to pay the steep fees for access to legal research platforms — such as Lexis-Nexis Total Litigator — some of which have sections dedicated to opening doors to profiles of judges and records of their decisions. Or they can buy compilations of carefully balanced judge assessments such as California Judge Reviews, compiled from interviews with members of the legal community conducted by experienced interviewers (print version: $269; e-reader $269; print & e-reader $399). Good, well-funded libraries — not necessarily specialising in law — can help poorer litigants to gain access to parts of those data troves.

Online judge review sites open to anyone vary greatly in the quality of their offerings, and are as open to manipulation as other such forums. The Robing Room, run from New York — ‘a site by lawyers for lawyers’ — is always worth a look for judge reviews that range from incisive and crisply-written to rambling and incoherent. It is a shame that this site appears to have been receiving less attention from its founders, lately, because their judge-rating system is an intelligent prototype of something potentially even more forensic and valuable.

Of course search engines are crucial for drawing attention to all these resources, but their performance is unpredictable, glitch-prone, and corruptible. See the note at the start of this post.

** For depressing contemporary parallels, see:

‘Insurance against the destruction of court records’

… and …

‘Bad news for everyone hoping to make judges in the largest U.S. court system accountable for their actions: so far, they have deflected attention from the California Auditor’s findings about them’

 

‘You cannot turn the clock back on transparency’ 

 

michael lewis 'against the rules' podcast graphic -- cotin.org
Michael Lewis’s Against the Rules — a podcast in seven parts — is indispensable listening for anyone anxious to see technology deployed forensically to stamp out the injustice that follows when powerful people duck laws and regulations

What if the performance of judges across the U.S. could be monitored by an equivalent of the National Basketball Association’s four year-old, high-tech, Replay Center — in which referees vet the fairness and accuracy of other referees in games played across the country, without delay?

This web site’s focus on using technology to make today’s too often strictly nominal courts of justice radically transparent — and so, fully accountable to citizens — is in perfect sync with Against the Rules, a podcast by Michael Lewis, who is best-known as the author of Moneyball and The Big Short. 

Launching his series in late April, he explained to The New York Times that his subject was ‘all the poorly refereed corners of life’ — and growing, mass outrage about the reflexive tendency of ‘[t]he privileged to try to protect what they have by evading authority and regulation.’

In the podcast’s introductory segment, one of Lewis’s interviewees tells him that ‘whether it’s in baseball or any other walk of life, you cannot turn the clock back on transparency.’ 

Nor is there going to be any more reflexive genuflecting before undeserved or unearned authority, in any profession or post — even if it is only this one class of sport referee, in American basketball, that has so far acquired such a comprehensive, systematised check on its latitude for biased, corrupt, or otherwise delinquent behaviour. As Lewis sums up his discoveries about its genesis and effects, ’Everyone believed that the only way to ensure the fairness of the game was to let the referee play God. The Replay Center is an admission that the referee is not God — and that he makes mistakes.’

It is an innovation that appears to have been a great success. Nothing could gladden the hearts of fighters for genuine impartiality and fairness more than the evidence of changes in the right direction that the Replay Center appears to have brought about.

What follows are extracts from the transcript of ‘Hoop Reams,’ an edition of National Public Radio’s This American Life that featured a special condensation of Against the Rules — after a framing narrative by Ira Glass, the show’s host.

Ira Glass: The journalist Michael Lewis, … was looking around at what’s going on in America these days. And he noticed that one way you can describe the current moment that we’re all living through is that Americans don’t trust the refs — in all walks of life. They don’t trust their impartiality.

I’m talking about police, Supreme Court justices, journalists, the people who regulate the banks and Wall Street and student loans, the people setting medical costs, judges. So many people today feel the system is rigged. I mean, Bernie Sanders and Donald Trump both ran on that. So many people feel that the figures of authority, charged with enforcing rules impartially, keeping everybody on a level playing field, that they’re failing at their jobs.

[ … ]

Michael Lewis: … So we’re walking across a parking lot in Secaucus, New Jersey. And there are chain hotels and motels in someone’s idea of a mall. And we’re surrounded on all sides by freeways. … And we’re approaching a four-story, rectangular, otherwise nondescript concrete building.

There’s a discreet little sign here that says NBA and shows a logo with a basketball player. Inside, a recent concession to the world we live in– the Replay Center, a place where basketball referees review the calls made by other basketball referees in real time, to minimize referee error. The Replay Center was built to persuade people that life was fair.

… It’s wall-to-wall screens, 110 of them. What’s on them is whatever is captured by all the cameras in 29 NBA arenas across the country. They may have a screen somewhere with scores on it, but I didn’t see it. And they’re all muted. What you hear is referees staring at basketball games. What you see is nothing but angles on professional basketball courts.

… These Replay Center refs have video technicians with them, who can freeze a moment on screen, then zoom out or zoom in so that the entire screen contains only a player’s fingertips or his toes. Here you just scroll through tiny slivers of the game, not the game itself. The sliver is where injustices might occur.

[ … ]

Justin Wolfers: Look, I don’t really like writing papers about sports. I’d prefer to write about the economy.

Michael Lewis: That’s Justin Wolfers, a behavioral economist at the University of Michigan, and the co-author of a paper about NBA refs.

Justin Wolfers: But the thing is, this is a domain where the NBA referees have tremendous incentives not to make the wrong call. Every error they make is tracked. Those errors determine whether they get more games. Those games determine how much they get paid. This is arguably the most analyzed workforce in the country.

Michael Lewis: Basketball referees are now picked apart in ways that not long ago would have seemed preposterous– not just for the fairness of their calls but for their unconscious behavior. Wolfers took data from over a decade of NBA basketball games, more than 250,000 of them. Then he set out to look for evidence of the refs’ racial bias.

Justin Wolfers: The question here isn’t whether people are anti-black or anti-white but whether there’s an in-group bias. So if a predominately black team is playing and the refereeing crew is predominantly white, are there more fouls called against them than on nights when the same team is playing with a predominantly black refereeing crew? And it turns out, the answer is yes.

Michael Lewis: Wolfers wrote his paper back in 2007, before this new age of referee transparency. … And the NBA wasn’t happy. The commissioner at the time attacked the study and embarrassed the league by trying and failing to refute its findings. … When the dust settled, Justin Wolfers was curious to know if his paper had had any effect. He made another study of referees after the controversy he’d created. And guess what.

Justin Wolfers: The most recent study that we did seems to suggest that that form of racial bias has gone away.

Michael Lewis: For a while anyway. He has no idea why. Maybe simply making the refs aware of the problem was enough to correct it. By the way, the NBA disputes this study too. But in the end, this became a case study — not in ref ineptitude but in ref reform. NBA refs have now achieved what police forces can only dream of, though the refs have no choice. The world’s now too good at seeing their mistakes.

Regular readers of COTIN will remember last year’s post about the clear, incontrovertible evidence of racial bias in the rulings of American judges in the findings of Alma Cohen and Crystal Yang, for their study at the Harvard Law School — in the course of which they examined over 500,000 sentences handed down by nearly 1,400 federal judges between 1999 and 2015. 

Imagine the difference that a Replay Center counterpart for judges could make to that pattern of injustice — for a start.

Bad news for everyone hoping to make judges in the largest U.S. court system accountable for their actions: so far, they have deflected attention from the California Auditor’s findings about them

Extract from the 25 April 2019 report by the California Auditor on the Commission on Judicial Performance - COTIN.org
Above: excerpts from the report by the California Auditor on one barrier to investigations by the judge monitor — the Commission on Judicial Performance — of complaints about judges by lawyers and litigants.  Below: quotation of George Clooney in The Daily Mail, 10 October 2017

George Clooney, quoted in The Daily Mail 10 October 2017 - COTIN.org

In 2018, the World Justice Project — not international in origin, like the United Nations, but a brainchild of the American Bar Association — tried to quantify the ill effects of litigation on litigants, with international comparisons. It collected survey respondents’ answers to a question about whether they had experienced  ‘stress-related illness’ — among other forms of hardship — in trying to resolve their legal problems. One discovery was that an almost identical proportion of respondents in the U.S., U.K. and Canada — just under a third — answered in the affirmative.

There was no comparable attempt by the California Auditor, Elaine Howle, to measure unpleasant consequences for litigants and lawyers of the failures of judge monitors at the Commission on Judicial Performance (CJP) to do their job responsibly or competently. Humanising her findings and helping the public to relate to them was not part of her remit in ‘the first audit of an agency that receives more than 1,000 complaints about judges each year and publicly disciplines fewer than 10,’ according to The San Francisco Chronicle.

Had the Auditor been able to simply name judges who have been the subject of accusations, and their accusers — with outlines of their grievances — the audit’s results would have automatically become relatable for people outside the legal community. But by suing the Auditor in an attempt to prevent the investigation of its operations — the only one in the nearly 60 years since it was founded  — the CJP contrived to suppress all references to real-life identities. It made keeping that information out of public view a condition of settling the dispute — a demand to which the Auditor had to agree, to unfreeze the audit after two years of legalistic wrangling.

Without narratives animated by experiences of actual, flesh-and-blood citizens, and no hint of the despair of the 99 per cent of complainants whose submissions to the CJP led to no publicly-known consequences for judges, the Auditor’s report has received  practically no media attention — aside from terse summaries in specialised legal media and California newspapers of record. 

As this state has the largest court system in the U.S., it is surprising that national media have so far failed to show any sign of noticing the following devices — among others — that the California judiciary has used to screen itself off from oversight by anyone but fellow-judges, to avert censure and reform:

  • Useless, out-of-date tools: As COTIN readers saw last month, the decrepit computer system still being used by the CJP to process complaints in the middle of the second decade of the 21st century was a quarter-century old. Members of the public had every reason to assume that they should be able to make those submissions from their smartphones as effortlessly as filing tax returns online, but instead had to deal with mailing paper forms in stamped envelopes. The computer which, according to the Auditor’s report, CJP staff could neither run nor repair, was of the same vintage as floppy disks mouldering in basements, wreathed in cobwebs — as handy as a horse-and-buggy on a five-lane freeway.
  • Holes in trial records: Another revelation in the audit report was that the CJP’s investigations into several cases were superficial and incomplete because of a lack of court transcripts — objective, word-for-word records of exactly what the judge in a particular trial said and did. The Auditor quoted the CJP’s own statement about this handicap, in testifying before an Assembly Budget Subcommittee in 2016 — but had little sympathy for the implication that there was nothing that the judge monitor could do about this: ‘If CJP believes the absence of court transcripts or recordings regularly impedes its ability to conduct investigations, it should expand its efforts to inform policymakers’ about that lack.
  • Terminating the creation of transcripts of trial proceedings at public expense: Courts have been laying off court reporters for years. The complete record by a professional trained in accurate transcribing of what happens in the trial of a case is indispensable for any litigant who wants to take a decision by a trial judge to a court of appeal for vetting and possible overruling. But in another quotation of the CJP, the Auditor’s report records that ‘many courts were responding to budget cuts by eliminating court reporter services.’ This trend and excuse in one of the world’s richest regions is curious, to say the least.
  • Destroying court records: Courts have been deliberately and systematically destroying records of court proceedings. On another part of this site, COTIN has drawn attention to the unconvincing claim by courts that — even though digital storage is cheap and its costs have shrunk spectacularly, decade after decade — economic considerations dictate that many case records must be destroyed, on a prescribed schedule. 

Sooner or later, anyone weighing these facts is bound to wonder about the failure of thousands of conscientious California judges and lawyers to raise the alarm — professionals well aware of the degree to which bad judges are assisted in covering their tracks and evading punishment, but saying nothing about this to taxpayers.  They have stayed silent, despite the obligation that their code of conduct imposes on them:

As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. [… A] lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.

It would be heartening to learn that any members of the profession suffer agonies of private guilt about their failure to speak up and push for reform. As the actor George Clooney said at the height of the #MeToo uproar,

I suppose the argument would be that […] every time you see someone using their power and influence to take advantage of someone without power and influence and you don’t speak up, you’re complicit.

History says that little will be done about the California Auditor’s damning report on the state’s job-shirking discipliner of bad judges. Clue: the long-running feud about mythical ‘unpublished’ opinions

Clip 1 from the California Auditor's report on the Commission on Judicial Performance, 25 April 2019, COTIN.org

Clip 2 from the California Auditor's report on the Commission on Judicial Performance, 25 april 2019 COTIN.org
Clips from the 25 April 2019 report by the California Auditor on the Commission on Judicial Performance. The second is from a section about staff who cannot operate or maintain their 25 year-old computer system — in their office at the northern end of Silicon Valley

Transparency and a wholesale, top-to-bottom restructuring are the chief recommendations for California’s Commission on Judicial Performance (CJP) by Elaine Howle, the state’s Auditor — in her 25 April report card that adds up to a big red ‘F’ for fail. Because the CJP acquired a new director at a late stage of the audit, in 2017, there is some hope of remedial action and reform, but the historical record shows that judges excel at evading public control.

The five-year audit of the way the CJP treats complaints about judges not behaving or doing their work as judges should revealed — among other things — that:

  • From 2013-14 to 2017-18, the CJP ‘closed at intake about 85 per cent of the almost 6,000 complaints it closed.’ This means that they were tossed out without investigation. 
  • The CJP’s complaint-investigators failed to delve adequately into about a third of the cases that the Auditor examined in detail, ‘even though these investigations involved serious allegations.’
  • California judges shield each other from censure and discipline. Though California voters passed a proposition twenty-five years ago that was designed to make this harder, by ‘increasing the public’s involvement with judicial discipline,’ the CJP still hands the task of hearing evidence of judicial misconduct to members of the same tribe, ‘a panel of three judges — known as special masters.’

No summary on this site or anywhere else could be an adequate substitute for reading the Auditor’s crisp presentation of her findings, which — despite the unavoidably bloodless officialese — is liable to make a reader’s skin creep. 

For instance, in the section about the CJP’s failure to look for patterns in following up on reports of misbehaving judges, the report highlights the case of the Commission receiving twelve complaints in less than ten years ‘about the demeanour and bias’ of a particular judge. In reviewing the fifth of those complaints — that the judge ‘had displayed poor demeanour and and showed favouritism during a court proceeding’ — the CJP’s investigator interviewed only the complainant and a single witness before he decided that the allegations could not be proved. The CJP ‘closed the complaint without issuing discipline.’ Worse, this CJP complaint-investigator agreed that ‘he could have expanded the scope of the review,’ which would have made it possible for him ‘to determine whether a systemic problem with the judge’s behaviour existed.’ But he told the Auditor’s team that he could not remember why he did not take that obvious step — yet was still certain that he was not guilty of any lapse in diligence.

Most astounding of all — given that the CJP’s office is in San Francisco, at the northern limit of Silicon Valley — the computer system that this body uses to manage cases is nearly 25 years old, and therefore incapable of accepting electronic submissions of allegations against judges by lawyers and litigants. The IT expert who created it for the Commission retired in 2014 without leaving ‘any written instructions for operating and maintaining the system.’

Gently castigating the CJP for its failure to update its tools — and restricting communications from complainants to snail mail — the Auditor noted that if the Commission were to accept digital submissions, its vintage case management system would require its staff to enter these into it manually, keystroke by keystroke. The result? ‘[A]s long as it relies on its outdated system, CJP will be significantly hindered from increasing its accessibility to the public.’

In whose interests could it be to under-equip the CJP so woefully? Powerful people with sharp brains bent on ensuring that the Commission is only barely capable of executing the tasks for which taxpayers pay it handsomely.

Impressively, the Auditor’s report was released with the CJP’s response to a final draft of it — and Elaine Howle’s reply to that reaction (on the same web page).  Their bristly exchange prefigures the colossal struggle on the horizon between representatives of the public interest and the California judiciary. If the past is any guide, the judges will win — succeed in ensuring that the CJP remains virtually toothless — even if the Auditor’s office gets the support it needs from legislators in Sacramento. The comprehensive structural overhaul Elaine Howle recommends for the CJP cannot happen without an amendment to the state’s constitution. That can only be accomplished by vote, in the legislature.

Answering the CJP’s claim that it had ‘fully cooperated with the audit,’ the Auditor made it clear that the Commission had only done so after crippling this review for nearly two years by initiating a legal action intended to obstruct or kill it.  Of course the CJP does not believe that it needs reorganisation, or that the Auditor was right to conclude that its present, ‘unitary’ structure is problematic, even though this means that the same group of people conducts investigations into charges of judges doing their jobs poorly and decides whether or not they deserve punishment, and by what means. With extraordinary tact, the Auditor refrained from spelling out what makes that grouping-together undesirable. It is essentially this: that it makes it too easy to shield bad judges from chastisement by conveniently failing to discover evidence to support charges against them; or by declining to look for it at all. 

Rejecting the Commission’s argument that ‘the California Supreme Court has consistently upheld the unitary structure of CJP as a judicial discipline agency,’ the Auditor pointed out that ’17 states have adopted a bicameral structure for their judicial oversight commissions,’ and that ‘the American Bar Association’s model rules for judicial disciplinary enforcement’ prescribe precisely such a form of organisation ‘that separates investigating and adjudicative functions.’ 

The CJP did agree to improve its transparency and modernise its antiquated operations without making any specific commitments, such as whether it would or would not be following the recommendations that it hold meetings open to the public and enable electronic submissions by complainants.

Ominously, though, it warned that ‘[t]here has never been a successful challenge to CJP’s structure and authority,’ — a history which, it claimed, ‘establishes that there is no problem …’.

The California judiciary is highly skilled at batting away demands for reform by voters and legislators, and at neutralising legal statutes imposing new rules for its functioning.

Anyone interested in this record need look no further than a topic that this site has touched on before — so-called ‘unpublished’ opinions, or rationales for decisions by courts of appeal. An appellate opinion explains exactly how a panel of judges arrived at their decision and chose to apply the relevant law, in determining the fate of an appeal against a lower court’s  judgment.

But because too many judges would rather not take responsibility for any of that, branches of the U.S. judiciary have for decades insisted on labelling as ‘unpublished’ the texts of too many appellate opinions  that are, in fact, widely circulated, and accessible anywhere on the internet, at no charge, almost immediately after they are issued.  The designation has crucial implications . Among these is that it more or less absolves loftier courts of the responsibility to vet them — effectively insulating lower-ranking judges from being held accountable and punishable for what they do.

For how long have judges been using this form of deception to conceal defective or corrupt reasoning and disregard for the law they are supposed to follow? In his eye-opening historical treatise on the subject — going back to the mid-19th century, and restricted to California  — Rafi Moghadam has shown how the practice is only the latest ploy for averting accountability, after the state’s judiciary could no longer dodge the task of issuing written opinions. In 1854, state lawmakers introduced new law requiring that the opinions of courts of appeal at every level be delivered in writing. The state’s highest court ‘responded by invalidating the statute,’ and ‘held that the legislature was without authority to require the judicial branch to provide written reasons for its decisions.’ Then, in 1879, ‘the voters of this state disapproved opinionless judgments …’. 

Eventually, the California judiciary adopted the ruse of ‘unpublished’ opinions — a decision committed to writing, but of limited value for ensuring accountability because ‘casting doubt on the soundness of its reasoning’ without taking anyone to task for that is what its tricky labelling accomplishes.

This device is still being used in the 21st century. In her contribution to the debate — ‘Legal Fiction of the “Unpublished” Kind: The Surreal Paradox of No-Citation Rules and the Ethical Duty of Candor’  — J. Lyn Entrikin Goering noted in 2005 that ‘eighty percent of the decisions issued each year by the thirteen federal courts of appeal are designated as “unpublished” or “nonprecedential’’.’ That number has since soared to 88 per cent.**

Elaine Howle, the California Auditor, said in her rebuttal of the Commission’s objections to her audit: ’We look forward to reviewing evidence of how CJP implements our recommendations.’ 

With supernatural luck — and enough pressure from the public and valiant lobbying organisations, such as the Center for Judicial Excellence  — this site might have something significant of that nature to report.

But any readers waiting for it would be ill-advised to hold their breath.

** in the twelve months to 30 September 2018, according to government statistics on U.S. courts, to which Professor Entrikin was kind enough to send COTIN a link.

Who or what is making it harder to find news about performance-vetting and disciplining of California judges in Google — and why might this dismay Justice Breyer of the US Supreme Court?

 

+Justice Stephen Breyer interview by David Rubenstein 9.12.2014 COTIN.org
Above: On YouTube, Justice Stephen Breyer being  interviewed by David Rubenstein for C-Span on 9 December 2014. One of the questions was, ‘Why not let the American people see the justices when you’re hearing cases?’ Below: Extract from the introduction to Justice Breyer’s Active Liberty

+Clip from Active Liberty by Stephen Breyer COTIN.org

Page 2 Google search results CJP v California State Auditor 11 nov 2018 COTIN.org
… In the lower half of p2 of Google’s search results for ‘cjp v. california state auditor’ on 6 November, the COTIN link is the only one supplied for the year 2018. None of the links on p1 mentioned the settlement and green light for the investigation

If court proceedings were streamed online — for the excellent reasons this site advocates with illustrations from a case study  — the manipulation by unknown hands of search engine results about judges would be far more difficult. Of course this matters because most litigating taxpayers want — and deserve to obtain easily — information that lets them assess the likelihood that their case will be tried fairly (or not) and reassure themselves that the judge hearing it will know the law that applies (or not). 

This entry in COTIN is a sequel to a part of the last one, and records a continuing void in Google where there should be facts and news about the progress of the California State Auditor’s first-ever investigation of the Commission for Judicial Performance, the disciplinary body charged with vetting allegations of misconduct against California judges. As noted earlier, a settlement in September gave the Auditor a green light to proceed after the CJP sued to block the enquiry into its handling of complaints against judges by litigants and lawyers. Unfortunately, as this post will show, discovering that vital news from internet searches has gone from unlikely to near-impossible.

Whether this has been accomplished through the efforts of actors inside or outside Google, the effect recalls the memory hole in George Orwell’s Nineteen Eighty-Four — ‘a small chute in the wall used to carry documents to a large incinerator, in order to censor information and or remnants of the past,’ which helped the Ministry of Truth ‘to serve the propaganda interests of the government.’ 

Obstructing the flow of facts about court officers is out of keeping with the fundamental principle in the Western legal tradition that makes court proceedings public information. It is in the reverse direction from the overarching trend in legal reform, which is to harness computer power and the internet for transparency — which would make it harder to hide judicial misconduct — and accountability, which would mean holding misbehaving or incompetent judges responsible for their actions.

Unless the distractions of Brexit act like a spanner in the works — impeding the British government’s performance of its role in the process — trials in Britain will begin to go online in 2020. Surprisingly, the United States is not at the forefront of this revolution, even if it is the home of Silicon Valley. Interviewing Justice Stephen Breyer of the U.S. Supreme Court on the occasion of the 800th anniversary of Magna Carta — to which American revolutionaries had looked for guidance about their rights —  the philanthropist-billionaire David Rubenstein asked him: ‘Why not let the American people see the justices when you’re hearing cases? Why not televise them?’

Watching Justice Breyer’s struggle not to give a clear, quotable answer is a revelation. He says that members of the public watching Supreme Court deliberations will not understand that ‘the process is mostly in writing.’ On the assumption that the camera in the courtroom will be controlled by television journalists and the footage edited by them selectively, he says that he expects that any justice could be made to look ‘like a terrible idiot’. He says that permitting proceedings to be televised would involve ‘too much risk for a group of conservative people’ — though not for their successors, whom he expects to be far more comfortable with the internet as a communication medium. And then he says, finally: ‘So the answer to that is, I  d o n’ t   k n o w.’

Four years later, it is unlikely that he would say what he did then. Hearings of the U.K. Supreme Court, whose work is also mostly written rather than oral, have been televised since May 2011; and of all Court of Appeal deliberations, since last month. They are streamed live over the net by the court, not journalists — in an evolutionary jump that has evidently encountered no criticism — and have found a growing audience.

But it is hard to believe that even in 2014, the humane and high culture-loving Justice Breyer (the only one on SCOTUS from California) was speaking on his own behalf, about his personal beliefs — rather than, perhaps, protecting camera-averse fellow judges. Active Libertyhis book published in 2005 in which he laid out his philosophical framework for his work, can be read as a call for active participation by the public in all branches of government. In its introduction, he praises the emphasis by Benjamin Constant, an 18th-century philosopher from French-speaking Switzerland, on sharing ‘sovereign authority’ with citizens to establish ‘“among them a kind of intellectual equality which forms the glory and the power of a people.”’ This comes with ‘the citizen’s right to “deliberate in the public place,” … “to enact law,” to examine the actions and accounts of those who administer government, and to hold them responsible for their misdeeds.’

Attempts to conceal from public view the recommencement of the California State Auditor’s examination of the CJP, the institution that was set up to delve into the misdeeds of California judges, would be deeply inconsistent with ensuring the ‘active liberty’ of California citizens. Yet the first links Google supplied for ‘cjp v. california state auditor’ in September, in the week after a court-ordered settlement allowed the audit to begin — including the one highlighted here with an alert by the California Protective Parents Association to ‘get your complaints to the CA Auditor now!’ — have vanished completely from the search engine’s crucial first three pages. So has the other link featured in that COTIN post, from law.com, which also came from the first page of Google’s end-of-September results.

But those disappearances are far less serious than the burying on Google — all but out of sight — of the report on the settlement by a leading California newspaper of record, The San Francisco Chronicle. The piece ran on the day after this news emerged (eleven days before the CJP and the Auditor published their joint press release about it).

That news item would certainly have been mentioned on COTIN if it had been possible to find it using ‘CJP,’ everyone’s shorthand reference to this body, rather than ‘california commission for judicial performance v. state auditor’ — a rigid and unnatural requirement of which Google is seldom guilty. The exemplary paragraphs about the background to and consequences of the resolution of the dispute between the CJP and the Auditor beneath ‘California’s judicial disciplinary agency to be audited after complaints’ by the Chronicle’s courts reporter, Bob Egelko, were listed high on the first page of Google’s offerings in the first week of October. But they have slipped steadily in the search engine’s rankings until by yesterday, 6 November, the story had been moved to page 2, at the very bottom of Google’s list of links.

This would hardly merit notice if there were as many links to the news about the unfreezing of the Auditor as you might reasonably expect to be capable of finding on any of Google’s first three pages. There were almost none. There was a page 1 link to a Chronicle piece on the battle between the Auditor and CJP — but that was for ‘Showdown over state auditor’s access to records on probe of state judges,’ dated 17 August 2017. Several other links on that page were at least a year out of date — a most curious discovery, given that timeliness is a point of pride and a Google boast on behalf of its search engine.

Just two pages of results appeared yesterday for the search terms ‘settlement cjp v. california state auditor,’ virtually none supplying the information. The Chronicle’s report was nowhere to be found on either page. Nor was there any report by other newspapers, if ever published. The only link about the settlement was for COTIN’s post, halfway down page 1. Searchers with the patience to type in ‘settlement california commission for judicial performance v california state auditor’ would have found the Chronicle piece in the fourth position on the first Google page, with three further down pointing to COTIN, and no other report.

Similarly, for ‘cjp v. california state auditor’ — the terms employed and discussed in COTIN’s 30 September entry  — there was nothing whatsoever about the settlement on Google’s first page of links yesterday. COTIN was listed in the ninth position on page 2 (photograph, above), just below the East Bay Times’s headline announcing ‘Peele: California judges trying to stop accountability move,’ which must have been shocking for readers when it ran — but that was over a year ago, on 25 August 2017.

The listing by Google of innumerable links, mostly from 2017 or earlier, for the fight between the Auditor and CJP — several of these from the Chronicle — shows that there is no lack of interest in either the subject or the newspaper. It is, to restate the obvious, that someone does not want members of the public with a legitimate complaint about the CJP and, or, California judges, to find the news about the unblocking of the audit. [ All the Google search pages mentioned here have been saved and are obtainable with a note to portia9@tutanota.com. ]

‘The United States is a nation built upon principles of liberty,’ says Justice Breyer in Active Liberty — going on to cite the Founders’ invocation of ‘the freedom of the individual citizen … to share with others the right to make or control the nation’s public acts.’

All good and true, no doubt. But surely to do any of that they need — first — reliable, fully current information protected from being shoved down that dangerous Orwellian memory hole?

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. 

 

Part 2, the Martian perspective on the 2018 judges’ elections in San Francisco: can an electable judiciary be seen as independent when appellate judges also choose a side in elections?

2. NYTimes 25 May 2008 (2) on tradition of US tradition of voting for judges cotin.org
Above and below: headline and extracts from a report in The New York Times, 25 May 2008, about the inseparability of politics and the judiciary in America

Excerpt NY Times -- 25 may 2008 ROW judges independent SC cotin.org

3. NY Times excerpt French judges know what they are doing SC cotin.org

Part 1 can be read here

Martian spectators at the contest for four San Francisco judges’ seats in state election campaigning are surely rubbing their antennae in disbelief.

Why aren’t earthlings dissecting and debating furious objections to the contest by some of California’s most powerful judges?

J. Anthony Kline, for example, is a senior presiding justice of the state’s Court of Appeal, where litigants must go to seek corrections of decisions by lower (‘trial’ or ‘superior’) courts. In his scathing opinion piece in The San Francisco Chronicle about four public defender-lawyers challenging four incumbent judges for their seats on the city’s bench, he wrote:

The effort to defeat four of the most able, compassionate, and experienced judges in Northern California simply because they were appointed by a Republican governor in an overwhelmingly Democratic county is an unmitigated act of political opportunism. […] [W]hatever the intentions of the challengers may be, the effect of their effort threatens to undermine the independence and integrity of the California judiciary.

Of course Justice Kline was exercising his right to free speech. But for anyone brought up with the idea of a judge as all but synonymous with strict and unbending impartiality, it was a shock to read not just his fiercely partisan argument in favour of four incumbent judges, but its near-perfect echo in a legal newspaper by an even higher-ranking member of the judiciary, Justice Mariano-Florentino Cuéllar of the California Supreme Court.

If appellate court justices — by effectively backing particular lower-court judges whose work they are supposed to vet for fairness and accuracy — create emotional bonds with them, how can they be objective when they have to scrutinise their reasoning and rulings?

If they feel so strongly compelled to protect these trial judges from the humiliation of running for office, in contests fully sanctioned by California’s constitution, would these appellate judges not feel equally compelled to spare them from the embarrassment of having their trial decisions overturned?

And what happens to any challenger lucky enough to win enough votes to defeat a rival backed by higher-court justices? Once such a challenger becomes a trial judge, can this turn out to be very bad luck — because the winner’s work is liable to be reviewed more harshly by appellate justices angry about that victory?

With nothing to stop top justices from praising particular trial judges, should they have to supply evidence justifying their praise — and address hard proof to the contrary, that makes such praise incomprehensible?

Consider, for example, Judge Cynthia Ming-Mei Lee, who presided over the case anatomised on this site. She just happens to be one of the San Francisco judges forced to defend their seats in preparation for next week’s election.

When Justice Kline referred to her as one of the ‘most able, compassionate, and experienced judges in Northern California’, had he forgotten that she herself has testified to the strenuous difficulty for her, that followed from her complete lack of experience as a civil court trial judge — a reassignment after four decades of specialising exclusively in criminal justice? A change of assignment she chose, because she felt like a change? Even lawyers — more lightly burdened with responsibilities than judges are — rarely straddle the separation between civil and criminal law, which each have their own courts and judiciary; or switch from one to the other.

It is unlikely that Justice Kline knows that in the appellate case on which this site focuses, to which Judge Ming-Mei Lee appointed herself, the court of appeal deliberately blocked official evidence of this judge’s lack of knowhow in the relevant branches of law — contained in an outline of her career published by her own court. The order dated 20 April 2016 shutting this document out of the review of her handling of the case stated:

The appellate record will not be augmented […] with a September 29, 2010 press release regarding a San Francisco Superior Court judge.

It would also be surprising for Justice Kline to have described her as compassionate, had he read many reviews of her performance. Aside from the unmediated contributions from lawyers and litigants on her page of the online reviewing forum, The Robing Room, there are the comments about her by attorneys in the clip below — mostly about her record in criminal law courts — gathered and scrupulously balanced by the authors of California Judge Reviews, in which the judge was given a chance to defend herself:

California Judge Reviews Judge entry on Cynthia Ming Mei Lee supplied by law ibrary in 2016
Extract from the entry on Cynthia Ming-Mei Lee, mostly as a criminal law judge, in California Judge Reviews, Elizabeth Smith and Mark Thompson, 2016

Our Martian onlookers would have to conclude that neutrality is a scarce commodity in this judicial election. Commentators are as likely to be partisan as candidates — and are breaking no laws when they are. Incumbency is no guarantee of either expertise or knowledge in contenders.

4. Charles Koch excerpt no tradition of selecting independent judges SC cotin.org
Highlight from a 2004 paper by the late Charles H. Koch Jr.  — a respected legal scholar and section-leader of the American Bar Association in the Indiana Journal of Global Legal Studies, Vol. 11: Iss. 1, Article 6

What would a Martian make of the 2018 judges’ election in San Francisco — in which candidates are being scolded and lambasted for running at all?

 

excerpt paper by CHARLES KOCH cotin.org
These highlights from a 2004 paper by the late Charles H. Koch Jr.  — a respected legal scholar and section-leader of the American Bar Association — show that judges running for election is just the way the legal system works in America. (Indiana Journal of Global Legal Studies, Vol. 11: Iss. 1, Article 6**)

Part 2 can be read here

Would-be judges in the rest of the world have to stay out of politics, but the U.S. constitution makes judicial officers electable through election campaigns that can be stunningly dull or ferociously contentious. In next month’s state elections in California, four public defenders — lawyers who represent poor people accused of committing crimes, at the taxpayers’ expense — are hoping to win enough votes to replace four San Francisco judges. They are being castigated for doing this.

Here are some questions about a mystifying opinion piece that ran in The San Francisco Examiner on 2 May 2018, headlined ‘Election threatens San Francisco judiciary’. Let’s be perfectly clear. That header is not a reference to any accusation of illegal or antisocial behaviour by the public defenders in the election, but to the fact that there are any contests at all for judicial positions. It is as strange as if an American were criticising fellow-Americans for ignoring the rules of cricket in playing football — even though everyone knows that cricket is not and never was America’s game.

Yet the piece is only one of several op-eds on the same theme in the run-up to the 5 June state election — many of them written by senior judges and politicians.

Examiner readers’ comments beneath the opinion essay of Amy Bacharach — a psychologist specialising in juvenile justice — suggest that Americans are as confused as any outsider by how their legal system works and ensures impartiality. Their remarks underline the urgent, dire need to make court proceedings open, transparent, and debatable by the public.

Until there are answers to the questions in this blog post — arranged as a virtual conversation with Ms. Bacharach — there is no saying how such a revolution is going to happen. The queries are linked to facts on record about the San Francisco case to which this site is dedicated

Amy Bacharach (AB): ‘The process of running against sitting judges defies judicial ethics in the first place … … The U.S. is alone in electing its judges, which puts judges in a role of politician. […] Overwhelming evidence suggests it’s dangerous to start playing politics with the judiciary.’

COTIN: ‘Defies’? ‘Start playing politics’? Surely those cannot be the right words. Until someone rewrites the California constitution so that judges no longer have to run for election every six years to retain their seats, how can these accusations against the four public defenders make sense?

At least one of the four judges being challenged in this election — Cynthia Ming-Mei Lee in seat #9 on the San Francisco bench — campaigned for a senior judicial post herself in 2012. An internal poll, the first contested election in the court’s history, made her the presiding justice.

Nor is this judge above open political affiliation. According to The San Francisco Examiner, she ‘registered as a Democrat after this election began, [and] previously listed no party preference, though she was a registered Republican in the 1990s.’

AB: ‘To be clear, the incumbent judges have no ethical concerns and have done their jobs diligently … … To be sure, the attorneys running for judge in San Francisco would likely make excellent judges, just as those currently serving are excellent judges.’

COTIN: How could anyone know any of that for a fact, when the state judiciary is notoriously so secretive about how it operates?

Only last December, an editorial in The San Francisco Chronicle said:

California’s courtrooms may be open to the public, but there’s no openness when it comes to disciplinary complaints against judges. The Commission on Judicial Performance insists that its oversight work be kept secret and untouchable.

It’s an indefensible stance, but it’s working so far. A state-ordered audit is seeking a look at the commission’s private world, but the judicial agency won a first-round victory — from a judge, no less — in blocking the outside inquiry. [The state Auditor has appealed against that decision.]

Elsewhere, the public defenders galvanising this election have been condemned for trying to unseat ‘experienced’ judges. The incumbents have unquestionably earned that label in some branch of law — but can still lack fundamental experience in others, with deadly consequences for litigants appearing before them.

Six years ago, after a long career as a specialist in criminal law, Judge Cynthia Ming-Mei Lee decided to preside over civil cases. In 2015, the year she turned 66, she herself testified to the difficulty she was having acquiring the necessary expertise, as a clip from a profile in a legal newspaper, The Daily Journal, shows (below).

graphic+ pull quote (1) Daily Journal 29 july 2015 COTIN.ORG
Extract from the profile of the career of Judge Cynthia Ming-Mei Lee in The San Francisco Daily Journal, 29 July 2015 (access via subscription or libraries)

The knowledge and principles behind civil and criminal law are profoundly different. As one legal reference site explains: ‘The standard of proof is also very different in a criminal case versus a civil case. Crimes must generally be proved “beyond a reasonable doubt”, whereas civil cases are proved by lower standards of proof such as “the preponderance of the evidence” (which essentially means that it was more likely than not that something occurred in a certain way).’

Nearly a year after Judge Ming-Mei Lee decided the case examined on this site — which required expertise at the junction of family and contract law — it was clear that she lacked any of the necessary background. This can feel like a tree surgeon appearing in scrubs beside your operating table, as the anaesthetic begins to take effect, with consequences as disastrous as you might expect

AB: … ‘Finally, judicial elections are often so low on the public’s radar that, as one writer noted, they provide the illusion of popular control at the expense of actual accountability.’

COTIN: Everyone who knows anything about California courts agrees that demanding accountability — with transparency — should be the highest priority of California voters who care about their legal system.

Surely the four public defenders in this election are performing an even more valuable public service than in their jobs, by forcing Californians to stop being oblivious and start paying close attention to what is happening in their legal system?

That is an objective perfectly in line with the mission of this site, and trends far across the world.

Recommended further reading at 48hills.org:

A challenge to sitting judges — and the secretive judicial system

** ‘The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal Systems’, Charles H. Koch Jr., Indiana Journal of Global Legal Studies, 2004.

Part 2 of this series of posts on COTIN can be read here