California takes steps toward improving judicial accountability

The commission that’s supposed to hold California judges accountable now will be subject to a dose of accountability itself.

In a unanimous vote this week, a joint committee of the California Legislature authorized an audit of the Commission on Judicial Performance, the only entity that can discipline or remove a state judge.

“The audit is not just about whether or not the CJP is being a good steward of public funds, it’s about their minimal transparency and making important information available, which has a direct impact on the public’s confidence in the courts,” said Joe Sweeney, CEO of Court Reform, a San Francisco Bay Area-based advocacy firm that focuses on improving transparency in the judicial process.

The audit will answer 26 questions, including what standards the commission uses to close a complaint after its initial review and how it decides when to make its admonishments public or private. The audit also seeks to determine the rationale for maintaining confidentiality for investigations and disciplinary actions.

Activists have been calling for reforming the commission for years. They say the commission operates in secrecy, shielding bad judges from scrutiny and failing to explain its own decisions.

They whipped up fresh support for their cause this summer after Judge Aaron Persky sentenced a former Stanford University student to six months in county jail for a campus sexual assault. The case sparked national outrage because the student, swimmer Brock Turner, faced a two-year minimum prison sentence after being found guilty.

Residents from across California attended the hearing to support the audit. One, Roberta Fitzpatrick, filed a complaint against a family court judge in 2010, alleging that the judge and his staff ignored state law – with disastrous consequences.

A year earlier, the body of her 14-year-old great-niece, Alycia Mesiti-Allen, was discovered buried in a backyard. A judge in Santa Clara County had awarded Alycia’s father, Mark Mesiti, custody in 2005, despite a history of domestic violence and substantial drug and alcohol abuse, according to federal probation records. He has been charged with murdering and sexually abusing Alycia.

Fitzpatrick filed a complaint with the commission in an attempt to expose what she believed was negligence on the part of the family court system.

“Children deserve to be kept safe by Family Court. To ignore this terrible failure is to appear to condone it, and to endanger an unknown number of children,” Fitzpatrick’s complaint states.

One year after Fitzpatrick filed the complaint and provided the commission with the information it requested, she received a letter stating that it found no basis for action against the judge or for proceeding further.

The case highlights a common frustration: Residents receive little information about what happens to their complaints.

“It doesn’t appear that the commission investigates anything,” Fitzpatrick said.

In 1960, California became the first state to develop an independent judiciary commission to help restore and maintain public confidence in the state courts. Subsequently, every state has created a judicial commission. They have similar confidentiality provisions as California.

In California, 3.4 percent of complaints result in disciplinary action, and less than 1 percent lead to any public rebuke. No complaints are made public.

Activists want to know how staff are trained to determine the merits of complaints, when the commission decides to take disciplinary action and more about the kinds of complaints it receives.

Arizona provides a template for how changes can come about. In 2006, a frustrated attorney there filed a complaint against a judge that resulted in a private reprimand. Noting that many severe disciplinary actions also were labeled private, he filed a petition with the state Supreme Court asking that all complaints against state judges be made public.

The petition argued that because judges are public elected officials, “the public has a right to know about even isolated acts of misconduct and or the appearance of impropriety.”

Since 2006, the Arizona Commission on Judicial Conduct has made public every complaint it files and all disciplinary actions it takes. If a complaint is unfounded, the names of the judges and complainants are redacted and an order is made available that explains the merits of dismissal.

George Riemer, executive director of the commission, believes that voters are better informed on the state’s judicial commission since it revised the public access and confidentiality rules.

“I think it definitely helps that the public can see what the commission and the Arizona Supreme Court have done,” he said.

Whitney L. Clegg can be reached at wclegg@cironline.org. Follow her on Twitter: @wlclegg.