Report 2016-137 Recommendation 9 Responses

Report 2016-137: Commission on Judicial Performance: Weaknesses in Its Oversight Have Created Opportunities for Judicial Misconduct to Persist (Release Date: April 2019)

Recommendation #9 To: Commission on Judicial Performance

To prevent the risk that it will fail to detect chronic judicial misconduct, CJP should create and implement procedures by October 2019 that require an investigator to review all prior complaints when investigating a judge and determine whether the prior complaints are similar to the current allegations. Further, the procedures should require that if a pattern of complaints indicates the potential for chronic misconduct, the investigator must recommend that the commission expand the investigation.

1-Year Agency Response

As a part of a Case Plan for each new investigation, investigating attorneys review the system of record for potential patterns or indications of similar prior misconduct. If there is any such indication, the investigating attorney review the prior complaints to assess whether there is a potential pattern of misconduct.

Throughout the audit process, CJP noted that there are potential due process issues with examining closed complaints as a part of determining whether there is a pattern of misconduct. (See, e.g., Audit Report at p. 79.) Per prior comments from the Auditor's staff, CJP developed procedures that outline how its staff should assess whether allegations are similar to one another and the circumstances under which to recommend an investigation of a pattern of misconduct. If a pattern is detected, the staff attorney discusses that conclusion with the director to determine an appropriate recommendation to make to the commission.

California State Auditor's Assessment of 1-Year Status: Fully Implemented

We are rating this recommendation as fully implemented based on our on-site review of CJP's new procedures. We found sufficient evidence that CJP implemented its new procedures requiring investigators to review all prior complaints when investigating a judge and determine whether the prior complaints are similar to the current allegations.

6-Month Agency Response

As a part of a Case Plan for each new investigation, investigating attorneys will review the system of record for potential patterns or indications of similar prior misconduct. If there is any such indication, the investigating attorney will review the prior complaints to assess whether there is a potential pattern of misconduct.

Throughout the audit process, CJP noted that there are potential due process issues with examining closed complaints as a part of determining whether there is a pattern of misconduct. (See, e.g., Audit Report at p. 79.) Per prior comments from the Auditor's staff, CJP developed procedures that outline how its staff should assess whether allegations are similar to one another and the circumstances under which to recommend an investigation of a pattern of misconduct. If a pattern is detected, the investigating attorney will discuss that conclusion with the director to determine an appropriate recommendation to make to the commission.

California State Auditor's Assessment of 6-Month Status: Partially Implemented

Since our 60-day assessment, we found that CJP developed more robust procedures that describe in detail how CJP will perform its review of past complaints and identify patterns. We look forward to reviewing additional support to evaluate CJP's implementation of these procedures.

60-Day Agency Response

As a part of the use of a Case Plan for each new investigation, investigating attorneys will review the system of record for potential patterns or indications of similar prior misconduct. If there is any such indication, the investigating attorney will review the prior complaints to assess whether there is a potential pattern of misconduct. If a pattern is detected, the investigating attorney will discuss that conclusion with the Director to determine an appropriate recommendation to make to the commission.

California State Auditor's Assessment of 60-Day Status: Pending

We assessed this recommendation as pending because CJP's guidance regarding reviewing prior complaints to determine if there is the potential for chronic misconduct is insufficient. During a recent Joint Legislative Oversight Hearing, the Director Chief Counsel stated there are due process issues with basing investigations on previous complaints that have been closed. Thus, we expected that CJP would develop strong procedures that outline how its investigators should assess whether allegations are similar to one another and that define under what circumstances a series of similar allegations represents a pattern that warrants expanding an investigation. However, the procedures that CJP provided to us do not describe in detail how CJP will perform its review of past complaints and identification of patterns. We recognize that directing CJP investigators to review prior allegations is a good first step, but to fully implement this recommendation CJP will need to develop more robust procedures.

All Recommendations in 2016-137

Agency responses received are posted verbatim.