I’m a junky for details when trying to understand the roots of public policy problems. People have been asking me to give them another update of what’s going on with the upcoming audit of the CJP. Below is my understanding of what’s up. I’ll include as many links as reasonably possible to corroborate my understanding, so you all can read for yourself.
The short version is this: The CJP wants to hide behind the concept that the California Constitution mandates what they must keep confidential. At the same time, they want to hide behind the concept that they alone have the discretion to decide what must be kept confidential. They want it both ways, while neither claim is being made in the best interest of the public. If you want to know more, read on.
The lawsuit of the Commission on Judicial Performance (CJP) v. State Auditor Elaine Howle, et.al. has been in the San Francisco Superior Court for nearly a year. Anyone (who can prove that they are not a robot) may read filed documents from the case by going to the SF Court website and searching Case No. CPF-16-515308.
The CJP is the state agency charged with overseeing the ethics and performance of California’s nearly 1800 judges and justices. Like other state agencies, they are funded by the state legislature. In their 57 years of existence, the CJP has been given multi-millions of tax dollars to perform their Constitutionally mandated duty of protecting the public from unethical, incompetent and criminal judges and justices. But they have never once been audited to verify that the tax dollars are being properly spent toward the intended purpose.
Many people across California (me included) can substantiate that the CJP has not been doing the job they are charged to do. The manner by which they operate behind closed doors serves more as guard-dog, rather than watch-dog, for less-than-ethical insider judges, justices and attorneys in California’s judicial branch.
As a result, court officer (judge, justice and attorney) collusive crimes in legal proceedings are flourishing with little fear of removal from office and no fear of prosecution. Judges who have balked about the harm from the broken system have claimed to be retaliated against by acts of the CJP.
The public outcry became so loud in the spring of 2016 that by August of 2016 the CA Joint Legislative Audit Committee (JLAC) directed State Auditor Elaine Howle to audit the CJP.
The public outcry was led by Kathleen Russell of the Center for Judicial Excellence (CJE); Joe Sweeney of Court Reform, LLC; political science professor Tamir Sukkary; and family law attorney Barbara Kauffman. So that there is no question of what the people want the legislature to cause the CJP to do, here’s CJE’s motto:
In October of 2016, the CJP sued State Auditor Howle (with the use of tax dollars allocated to them by the legislature) to obstruct the State Auditor’s ability to audit the “core-function” performance of the CJP on the legislature’s behalf.
This is the same legislature who the CJP recently asked for more money to operate. The irony of the situation was not lost on the Senate Budget Committee.
Watch this VIDEO from May 2017 starting at about 13 minutes to see the audacity of the CJP when asking the Senate Budget Committee for more money, $70K, to perform — with no legislative oversight via audit of their performance. CJP claims they they had no choice but to spend their money on filing a lawsuit b/c they need direction. (See CJE’s three-word-motto above for clear direction of what the CJP is supposed to be doing, but isn’t.)
The gist of the lawsuit is that CJP is trying to solicit help from California judges to rule to obstruct an audit of CJP’s performance when overseeing the performance of California judges. Yep, you read that right. The CJP wants those who they oversee, judges, to rule that the State Auditor can’t see if the CJP has been CYAing for those who they oversee, judges.
So the case landed in the lap of the Honorable Suzanne Bolanos on August 15, 2017. Two days later there was a hearing in her San Francisco court. I was there to witness it along with many others in the packed courtroom.
There were people there from family court, civil court, criminal court, probate court, toxic torts, foreclosure court and the court of public opinion. Those protesting the unpunished abuses of families and children occurring by Child Protective Services, that are being aided by fraud upon the courts and judicial bias, chose to stay outside and picket.
I don’t recall anyone from traffic court being there. Perhaps it’s because they are all sitting in for-profit-debtor prisons by orders of judges — b/c they can’t afford to pay their tickets, fines and bail bonds while awaiting hearings.
There are many people sitting in California jails who have not be found guilty of any crime. No happy holidays in their immediate future. Governor Brown and Chief Justice Cantil-Sakauye say they’ll get around to addressing that problem next year. (See link “bail bonds” above)
If you aren’t getting the gist of the problem and why people are so fed up with the CJP and their efforts to subvert this audit, here’s a poster which explains it:
So, at the August 17th hearing, CJP’s attorney’s basic argument was “The California Constitution says we can make up our own rules. So we made one up, Rule 102, that says we get to say it means the auditor can’t really audit us. Gee, we’d like to cooperate, but the Constitution is the Constitution. That’s our story and we’re sticking to it.”
The Auditor’s attorney’s basic argument was “Yea, no, huh-uh. That’s not the way it works when the CJP is a state agency being given tax dollars by the legislature, and the legislature needs to understand via an audit if those tax dollars are being properly spent. The public is screaming to the legislature that the CJP is severely compromised and we’d like to see if that is true or not. There is no such animal as a Constitutional mandate to obstruct audits of state agencies and there is no such authority granted to the CJP or anyone else to make up rules which say they can’t be audited. Man up, CJP! Quit wasting your and our money and time. Let us get on with the much-needed audit of your broadly questioned performance.” Of course, Mr. Moskovitz, attorney for the Auditor, stated the matter more eloquently.
(Sidebar: Have I mentioned the part in prior posts about the Director of the CJP since 1991 , Victoria Henley, announcing in May 2017 that she will be retiring at the end of this year — right in the middle of trying to stop an audit? Or that a few years back when Marin County courts were being audited, they were shredding files during the audit? Or that the Office of the President of the University of California was recently implicated for hiding a slush fund from the Auditor? The President of the UC is Janet Napoliatano. She’s a former governor of Arizona and former head of U.S. Homeland Security. There are so many threads of related back stories to this story of CJP trying to obstruct the audit by Ms. Howle, that I’d have to write a book to tell them all!)
So, back to the CJP’s lawsuit and where it stands today. After the August 17th hearing, Judge Bolanos issued an order on August 24th. She requested that the CJP’s and State Auditor’s attorneys clarifying a few things for her. Her ORDER states on page 2:
Neither party, however, presented any argument or briefing regarding the meaning of “confidential” in Article 6, section 18(i) [of the California Constitution]. Does the designation of “confidential” mean that the documents may never be produced to the Auditor…..?”
Oh boy! The CJP is on the hot seat to explain what makes them so special that they are immune from performance audit, and they are rewriting their rules.
They seem to be making things up as they go to justify why not a single judge in the State of California has been sent to jail in 20 years time for conclusively case-fixing. It appears that their attorneys at Kerr & Wagstaff LLP are not being informed of what the CJP is currently writing about what performance is at their discretion.
In their lawsuit with the State Auditor, CJP’s attorneys James Wagstaff, Michael von Loewenfeldt and Melissa Perry are arguing that the CJP can’t open up their confidential files to the State Auditor. They are claiming that the California Constitution forbids it. The CONCLUSION of their Brief (see page 9) that was filed in the San Francisco Superior Court on September 8, 2017, states,
“The term ‘confidential” in Article VI section 18, subdivision (i) of the California Constitution means absolutely confidential, not qualifiedly so.”
Yet just days earlier, CJP put a publication on their website dated August 29, 2017 titled, “REPORT CONCERNING ADOPTION OF ADDITIONS AND AMENDMENTS TO RULES OF THE COMMISSION ON JUDICIAL PERFORMANCE” It states on page 15 that what the CJP chooses to share with other government agencies is at their discretion:
“Currently, rule 102, subsection (g), provides that the commission may provide to a prosecuting agency at any time information which reveals possible criminal conduct by a judge, or any other individual or entity….The commission believes the requirement should remain discretionary.”
So which is it? The CJP believes the California Constitution absolutely mandates to them what “confidential” means when sharing, or not sharing, their files with other government agencies? – or – The CJP believes tis they alone who have the discretion to determine what is kept “confidential” when sharing, or not sharing, their files with other state agencies?
It’s a very important question. Judge Bolanos’ decision re: what the CJP can and cannot hide while being audited, will have broad ramifications for the people of California and the United States for years to come.
I know this because I have a long-term relationship with the CJP. For seven years I have been trying to get them to cause the rightful prosecution of their former Chairwoman Justice Judith McConnell, et.al. for case-fixing SLAPP suits (there are two) to defraud the American public with toxic tort expert defense witnesses of the USDOJ, et.al. — Veritox, Inc.
They won’t act to cause the judicial prosecutions (or even public admonishment). Justice McConnell won’t act to stop the deadly public defrauding over the Toxic Mold issue, that is resultant from her tireless case-fixing and concealment of unvacated, fraudulent court documents in fixed SLAPP.
I also know from personal experience that the CJP is not above misstating facts when obfuscating from performing the core-function they are Constitutionally mandated to perform — i.e. protect the public from corruption in the courts — as opposed to protect their CYAing for crimes from the eyes of the Auditor.
The latest example of CJP writing misstatement of fact to fit their scenario occurred just a week ago. They wrote on page 15 of their newly-word-smithed-rules-rewrite:
“In response to the commission’s solicitation of public comments on proposed rules, Sharon Noonan Kramer proposed a similar rule amendment, which would require the commission to notify state and federal prosecuting authorities when a judge is alleged to have engaged in willful felony acts. Her proposal is not addressed independently in this report because it was received after the time for submission of proposed rule amendments had expired.”
My well-reasoned suggestion that the CJP amend Rule 111.4 (Legal Error) to begin to cause much-needed prosecutions for California judges and justices who fix cases by criminal means, was submitted on April 12, 2017. The deadline was May 1st.
See the first page of CJP’s file stamped copy of my suggestion? See the dates of submission and deadline for submission? Seems we public-peons are not the only ones who understand that it is adverse to the public’s best interest for employees of state agencies, including commissions, to obstruct the State Auditor from doing her job; and that bad government actors currently could care less about getting caught b/c no one ever holds them personally accountable.
AB 562 is a bill sponsored by the Chair of the Joint Legislative Audit Committee, Assemblyman Al Muratsuchi. Yesterday on September 11, 2017 it passed all the hurdles in the legislature and now awaits Governor Brown’s signature to become law. AB 562 states in relevant part,
This bill would specify, that a state agency includes a commission for purposes of the California State Auditor’s authorization to access specified documents of a state agency. The bill would additionally prohibit any person, with intent to deceive or defraud, from obstructing the California State Auditor in the performance of his or her official duties relating to an audit required by statute or requested by the Joint Legislative Audit Committee. The bill would make a violation of these provisions punishable by a fine not to exceed $5,000.
P.S. Have I mentioned the one about CJP’s Chairman Anthony Capozzi, Esq. getting caught last fall sneaking a cell phone and over-the-counter pain meds to a client of his who was in the Fresno jail? Gosh, it seems it must have just been a harmless error that he delivered a box to a jailed drug dealer/local gang leader with a false bottom containing illegal contraband.
Like I said, I could write a book of back stories surrounding the need for a comprehensive audit of what the Commissioners of Judicial Performance and their staff really do behind closed doors when faced with evidence of crime in the judicial branch.
Let’s hope that Judge Bolanos understands that the word “confidential” is not synonymous with the phrases “above the law” and “beyond oversight” — because people are losing everything they own and some are dying while the games play on with no punishment for crimes in the California courts.
Sharon Noonan Kramer