Metropolitan News-Enterprise


Tuesday, October 30, 2007


Page 1


Courts Cannot Compel Disclosure of CJP Records, C.A. Rules


By STEVEN M. ELLIS, Staff Writer


The records of the Commission on Judicial Performance are absolutely confidential, and their disclosure cannot be compelled unless the commissionís rules so provide, the Court of Appeal for this district has ruled.

Holding yesterday that Evidence Code Sec. 1040 protects the commissionís legitimate interest in maintaining the confidentiality of its records and that the decision by the California Supreme Court in Pitchess v. Superior Court (1974) 11 Cal.3d 531 does not apply to the commission, Div. One quashed a subpoena duces tecum and denied a motion brought by a criminal defendant who sought commission records in support of his motion for a new trial.

Eric Davidson was convicted on two felony counts of possessing a forged driverís license, and two felony counts of unlawfully using personal identification. The charges arose out of a traffic stop, but Davidson claimed that no traffic offense had actually occurred.

He moved pro se before Los Angeles Superior Court Judge Keith L. Schwartz to suppress evidence resulting from the stop, and Schwartz denied the motion.

Davidson then complained to the commission that Schwartz had conspired with the arresting officer and the prosecutor to facilitate a sham trial.

The case was transferred to Los Angeles Superior Court Judge Antonio Barreto Jr., and Davidson was convicted after a trial by jury.

Davidson moved for a new trial. Seeking information about any complaints filed with the commission against Schwartz, including his own, he filed a Pitchess motion and served a subpoena duces tecum on the commission.

A Pitchess motion is a request made by a defendant in a criminal action for access to relevant information located in the personnel file of an arresting police officer that might bear on the defendantís claim that the officer had engaged in misconduct. The court reviews the information, in camera where appropriate, and then orders that some or all of the records requested in the motion be produced to the attorney for the defendant.

Records Requested

Davidsonís motion and subpoena asked for all sustained complaints alleging that Schwartz had engaged in any acts of judicial misconduct, including but not limited to any results from Davidsonís own complaint. He also asked for the names and addresses of all complaining parties, and the full record of any discipline imposed on Schwartz as the result of any investigations resulting from a sustained complaint.

Barreto viewed the commissionís records as relevant because they might contain an admission by Schwartz that his ruling on Davidsonís evidence-suppression motion was based on evidence outside the record. Over the commissionís objection that the requested records were confidential, he denied a motion to quash the subpoena and ordered the commission to produce any declaration or statement made by Schwartz in response to the commissionís inquiry into Davidsonís complaint for an in camera review.

Writ of Mandate

The commission the petitioned the Court of Appeal for a writ of mandate commanding the trial court to vacate its order and issue new orders denying Davidsonís motion and quashing the subpoena, which the court granted.

Writing for the court, Justice Miriam A. Vogel noted that an accused does not have an absolute right to obtain discovery, and that Evidence Code Sec. 1040 creates a privilege for official information where disclosure might violate a legitimate governmental interest.

As the constitutional body vested with the ultimate power to recommend the censure, removal or retirement of a judge, Vogel concluded that the commission had such an interest, and she wrote that sound public policy supported the commissionís rule that, with limited exceptions, its nonpublic papers and proceedings are absolutely confidential.

Pointing out that none of the recognized exceptions to the rule applied, such as consent, a threat to public safety, criminal conduct, or substantial unfairness to a judge in the public record, Vogel further concluded that, ďthere is no exception permitting disclosure to a trial court for in camera review or at all.Ē

Vogel also concluded that the decision in Pitchess, which applied only to law enforcement officers, did not apply to the commission.

She wrote that any rule allowing discovery of the commissionís nonpublic records would encourage mischief without a concomitant benefit to a criminal defendant; that disclosure would improperly allow Davidson to indirectly question Schwartzís thought processes in reaching his decision on the evidence-suppression motion; and noted that other states with similar commissions had rejected attempted such an encroachment on confidentiality.

Vogel finally opined that in camera review by the trial court would be just as improper as disclosing the information to Davidson.

ď[T]he superior court judge presiding over the proceedings in which the Commissionís confidential records are requested has no more right to see the Commissionís records than does any other member of the public,Ē she wrote.

Vogel was joined in her opinion by Justice Frances Rothschild and Los Angeles Superior Court Frank Y. Jackson, sitting by assignment.

Andrew S. Blum, counsel for the commission, said the commission was not only pleased with the ruling itself, but was happy that the Court of Appeal had upheld the confidentiality of the commissionís records in a published opinion.

Although courts had previously addressed the issue, he said that past cases had not resulted in a definitive ruling in the commissionís favor.

The case is Commission on Judicial Performance v. Superior Court (Davidson), 2007 S.O.S. 6395.


Copyright 2007, Metropolitan News Company