Is Anybody Judging the Judges? The California Legislature Wants Answers

by on August 16, 2016 · 0 comments

in California, Civil Rights, Culture, Election, History, Politics, San Diego

San Diego CourthouseBy Doug Porter

A joint committee of the California Legislature has authorized an audit of the Commission on Judicial Performance, the only entity that can discipline or remove a state judge.

A coalition of two dozen groups reflecting a wide range of interests, led by the Center for Judicial Excellence wrote letters, made calls and sent emails to urge the Joint Legislative Audit Committee (JLAC) to call for the audit.

“The Center for Public Integrity gave California an ‘F grade’ on its 2015 report card for judicial accountability, said Kathleen Russell, the executive director of the Center for Judicial Excellence in a press release.

“California’s lack of judicial accountability is renowned, and it weakens the public’s trust in its judges,’ she continued, “so this audit is an important step toward creating a culture of accountability for our state’s nearly 2,000 judges.”

The call for oversight of the overseers came following a slap-on-the-hand sentence by Judge Aaron Perskey for Stanford athlete Brock Turner, found guilty of sexually assaulting an unconscious woman behind a dumpster.

The case sparked national outrage when Turner was ordered to serve six months in county jail, instead of at least the two-year minimum prison sentence mandated by law.

judge perskyTurner’s father wrote a letter to the court, saying any jail time was too harsh, calling for the judge to keep the sentencing to probation: “His life will never be the one that he dreamed about and worked so hard to achieve,” Dan Turner wrote, adding that his son is paying a “steep price” for “20 minutes of action.”

Judge Aaron Persky justified his light sentence by saying Turner had a clean record and was a good student — an All-American swimmer with Olympic dreams who had made a mistake. In his ruling, he wrote that anything more than six months and probation would have had a “severe impact” on Turner’s future.


But what really captivated onlookers was the unnamed victim’s response. The woman eloquently detailed her harrowing experience in a statement made directly to Turner in court. According to BuzzFeed’s Ben Smith, the letter was read by the public nearly 5 million times over the weekend and has been widely circulated since as a powerful response to pain.

“You don’t know me, but you’ve been inside me, and that’s why we’re here today,” she said to Turner in court. “This is not a story of another drunk college hook­up with poor decision making. Assault is not an accident. Somehow, you still don’t get it. Somehow, you still sound confused.”

While this particular case has stirred up public concern, activists have long held that the judicial commission operates in secrecy and protects bad judges from scrutiny.

From the Center for Investigative Reporting coverage, via Reveal news:

“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.

Here’s a snip from the Union-Tribune story:

A petition at received national attention

A petition at received national attention

The commission’s annual statistics shows that it routinely dismissed 90 percent of complaints made without an investigation or inquiry, determining the complaints were unfounded. Of the 1,231 complaints received in 2015, for example, 41 resulted in some kind of discipline. Most were handled privately, with no public record of the outcome…

…The commission’s report said that it issued private discipline – an advisory letter or admonishment – in 37 cases.

Public discipline, in which the name of the judge and the circumstances describing the misconduct become public, was handed out in four cases.

Closed Ranks

The UT story cites San Diego lawyer Len Simon, one of one of more than a dozen people who filed a complaint against San Diego Superior Court Judge Gary Kreep, saying he violated judicial ethics by misrepresenting his qualifications and those of his opponent and violated campaign finance rules in the 2012 election. Simon and the other complainants have yet to hear a response.

kreep birtherFifty-six years ago, the State of California became the first in the nation to establish an independent judiciary commission. Allegations of judicial misconduct and/or incapacity would be investigated, matched up against standards set forth in the Code of Judicial Ethics, and discipline, where needed, could be meted out.

The reality of California’s judicial system is that its 2000 or so judges have closed ranks against outsiders, making oversight difficult.

In San Diego, the ‘situation’ with Judge Kreep has been ‘dealt’ with by coordinating retirements to maximize appointments and minimize open electoral contests. As I wrote in the SDFP’s 2016 election coverage on judicial contests:

The 2012 judicial elections, where birther lawyer Gary Kreep upset Deputy District Attorney Garland Peed, were a national embarrassment. Since that time, “open seat” judicial contests have all but vanished in San Diego…

…Candidates may compete for an open seat caused by retirement or death. In practice, however, open seats due for election are the first to be filled by appointment, allowing the appointee to run as an incumbent. Back in the days before California became essentially a one-party state, some judges (philosophically opposed to the governor in power) would time their retirements in such a manner as to allow for an open seat election.

The Commission on Judicial Performance is composed of eleven members: one justice of a court of appeal and two judges of superior courts appointed by the Supreme Court; two attorneys appointed by the Governor; and six lay citizens, two appointed by the Governor, two appointed by the Senate Committee on Rules and two appointed by the Speaker of the Assembly.


This is an excerpt from Doug’s column at our associated San Diego Free Press.


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