SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Dec-192017 4:41 pm Case Number: Filing Date: Dec-19-2017 4:40 Filed by: LINDA FONG Image: 06150061 STATEMENT OF DECISION COMMISSION ON JUDICIAL PERFORMANCE VS. ELAINE M. HOWLE ET AL 001 C061 50061 Instructions: Please place this sheet on top of the document to be scanned. Superior Court of Ca?fomla Countv Of San Francism 192017 CLERILS OF THE COURT By; ifh?eomy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO UNLIMITED JUPJSDICTION COMMISSION ON JUDICIAL Case NO. CPF-16-515308 PERFORMANCE, - - . - STATEMENT OF DECISION Pet?tloner/Plamt?ff? GRANTING PETITION FOR WRIT OF MANDATE OR, IN THE V- ALTERNATIVE, COMPLAINT FOR DECLARATORY AND INJUNCTIVE ELAINE M. HOWLE, in her of?cial capacity as RELIEF CALIFORNIA STATE AUDITOR, and the CALIFORNIA STATE OFFICE, Respondents/Defendants. Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce - STATEMENT OF DECISION This matter came before the Court for trial on August 17, 2017 on Petitioner the Commission on Judicial Performance?s Petition for Writ of Prohibitory Mandate, or in the Alternative, Complaint for Declarative and lnjunctive Relief. After the August 17, 2017 hearing, this Court issued an Order Requesting Supplemental Brie?ng. This Court then held a second hearing on November 3, 2017. The Court requested that both parties submit proposed statements of decision by November 27, 2017. The matter was submitted on that date. Being fully advised in the matter, and for the reasons set forth below, the Court grants the Petition for Writ of Prohibitory Mandate, or in the Alternative, Complaint for Declarative and Injunctive Relief in its entirety.1 FACTUAL BACKGROUND This matter was ?led by Petitioner Commission on Judicial Performance (?Petitioner? or against Respondents California State Auditor Elaine M. Howle and the California State Auditor?s Of?ce (collectively, ?Respondents? or ?Auditor?). The operative pleadings in this matter are the Petition ?led October 20, 2016 and Respondents? Answer ?led November 21, 2016. Pursuant to a schedule stipulated to by the parties, the parties ?led pretrial briefs in June and July 2017, and supplemental briefs as directed by the Court in September 2017. A. THE PARTIES 1. The Commission on Judicial Performance The CI was created in 1960 by a legislatively referred constitutional amendment. (California Proposition 10, Commission on Judicial Quali?cations (Nov. 8, 1960).) The CJP was established within the state?s judicial branch, and was the nation?s ?rst permanent state judicial disciplinary commission. (Adams v. Commission on Judicial Performance (1994) 8 Cal.4th 630, 637 [34 Cal.Rptr.2d 641, 882 P.2d 358]; Cal. Const, art. Vl, 8.) The CJP is vested with the authority to retire, remove, censure or admonish a judge, and to disqualify a judge during the The Court also grants the Request for Judicial Notice, ?led September 8, 2017, and the Auditor?s Request for Judicial Notice, ?led September 22, 2017. The Court previously granted Amicus Judicial Watch, Inc.?s Application for Leave to File Brief in Support of Respondents/Defendants Elaine M. Howle and the California State Auditor?s Of?ce. 1 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce CPF-16-515308 STATEMENT OF DECISION pendency of formal proceedings, subject to the review of the Supreme Court. (Cal. Const., art. Vl, 18, subds. The CJ is constitutionally empowered to make rules for the investigation of judges and for formal proceedings against judges. (Cal. Const. art. VI, 18, subd. The CJP is authorized by the California Constitution to ?provide for the con?dentiality of complaints to and investigations by the commission,? provided only that, when the commences formal proceedings, the notice of charges, the answer, and all subsequent papers and proceedings are open to the public for all formal proceedings. (Cal. Const. Art. VI, 18, subds. Pursuant to the authority granted to the CJ by the California Constitution, the CJP adopted Rule 102, which provides, in relevant part, that ?[e]xcept as provided in this rule, all papers ?led with and proceedings before the commission shall be con?dential.? (Rules of Com. on Jud. Performance, rule 102, subd. Rule 102 delineates speci?c and limited exceptions where disclosure of con?dential records to persons outside the CJ is permissible. (1d. at subds. 2. The California State Auditor The position and of?ce of Auditor was created by legislation. (Gov. Code, 8543, subd. Gov. Code, 8543.2.) The duties of the Auditor include annual examination of ?nancial statements prepared by the state executive branch and statutorily mandated performance audits. (Gov. Code, 8543.1.) At the request of the Joint Legislative Audit Committee of the California Legislature the Auditor is also authorized to conduct audits of state and local governmental agencies and any other publicly created entities. (Gov. Code, 8546.1, subd. Government Code section 8545.2 provides that the Auditor has access to, and the right to reproduce, any and all records of a state agency including con?dential records. (Gov. Code, 8545.2, subd. This statutory right of access purports to apply ?[n]otwithstanding any other provision of law.? (Ibid) B. THE AUDIT REQUEST AT ISSUE On August 10, 2016, the JLAC authorized an audit of the CJP. (Declaration of Victoria 2 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce STATEMENT OF DECISION Henley in Support of Petitioner?s Opening Brief, ?led June 29, 2017 ?Henley Decl.? Exhibit A.) The goal of the audit is to ?examine the policies and practices for handling and resolving complaints against judges by the Commission on Judicial Performance (commission).? (Ibid) The analysis of the audit prepared by the Auditor lists 18 speci?c and one catch-all area of inquiry. (Ibid) After the authorization, the and the Auditor met to discuss the requested audit. (Henley Decl. 3.) The CJP sought to cooperate with the Auditor and make all records available except those records designated con?dential pursuant to CJP Rule 102. The position is that the CJP may not give the Auditor access to the CJ P?s con?dential ?les, pursuant to Article VI section 18 subdivision of the California Constitution and CJP Rule 102. The Auditor counters that it has statutory authority to view all records pursuant to Government Code section 8545.2. The CJP also objected that certain topics included in the audit infringe upon the discretionary exercise of the core constitutional duties, violating the separation of powers doctrine. (Henley Decl. 11 3.) Speci?cally, the CJ objected to Topics 2, 5, and 12 of the audit. (Henley Decl. 11 4.) Topic 2, seeks to determine whether the CJ is ?taking an appropriate and reasonable course of action for the complaints it reviews and for determining the disposition of each complaint.? (Henley Decl. Ex. A.) Topic 5 seeks to ?[a]ssess the commission?s process for evaluating the credibility of evidence, witnesses, and statements.? (Ibid) Topic 12 states, ?[d]uring the most recent ?ve year period . . . evaluate the outcomes of a selection of cases and the discipline imposed by the commission, including cases that resulted in private discipline.? The CJP contends that Topics 2, 5, and 12 violate the separation of powers doctrine by seeking to evaluate the decision-making of the CJP in speci?c cases and the exercise of its core function. The Auditor contends those topics do not infringe on the discretionary functions. The CJ has consistently agreed to submit to an audit on the other topics to the extent they do not require review of material made con?dential by CJ Rule 102, including evaluation of the ?nances, workload statistics, and processes. (Henley Decl. 4.) However, the 3 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce CPF-16-515308 STATEMENT OF DECISION Auditor declined to continue with the audit on those undisputed topics. (Henley Decl. 11 5.) C. THE PETITION FOR WRIT OF MANDATE On October 20, 2016, the CJP ?led the instant Petition. The CJP requests that this Court grant its petition for writ of mandate, and enter declaratory and injunctive relief: (1) compelling the Auditor to refrain from seeking to access the con?dential records; (2) declaring that the Auditor is prohibited from seeking the CJ P?s records made con?dential pursuant to the California Constitution and CJP Rule 102; (3) compelling the Auditor to refrain from auditing the exercise of the CJ P?s core functions; (4) declaring that the Auditor is prohibited from auditing the exercise of the core functions; and (5) declaring that the Auditor is prohibited from charging the for the cost of the audit. The Auditor opposes the Petition. MANDAMUS AND DECLARATORY RELIEF A traditional writ of mandate lies ?to compel the performance of an act which the law specially enjoins, as a duty resulting from an of?ce, trust, or station (Code Civ. Proc., 1085, subd. ??Two basic requirements are essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon the part of the respondent; and (2) a clear present and 35? bene?cial right in the petitioner to the performance of that duty. (Steel gard Inc. v. Jannsen (1985) 171 Cal.App.3d 79, 83 [217 Cal.Rptr. 152] [internal citations omitted].) An of?cial?s af?rmative obligation to perform encompasses a corollary obligation not to perform the duty in violation of the law. Thus, the unlawful exercise of a ministerial duty can be restrained and courts label the writ restraining such unlawful performance ?prohibitory mandate.? (Planned Parenthood A?iliates v. Van de Kamp (1986) 181 Cal.App.3d 245, 262-263 [226 Cal.Rptr. 361].) Prohibitory mandamus may be used either where an ?of?cial?s conduct is in violation of a statutory ministerial duty,? or ?where the performance of a statutory ministerial duty would violate the Constitution.? (Id. at p. 263.) As the entity whose records are subject to the disputed audit, as well as the entity tasked by the Constitution with providing for the con?dentiality of the records at issue, the CJ has a ?special interest to be served or some particular right to be preserved or protected over and above 4 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce CPF-16-515308 STATEMENT OF DECISION the interest held in common with the public at large.? (Associated Builders Contractors, Inc. v. San Francisco Airports Comm ?n (1999) 21 Cal.4th 352, 361-362 [87 Cal.Rptr.2d 654, 981 P.2d 499] [citation omitted].) The CI thus has suf?cient bene?cial interest in prohibiting Respondents from accessing the con?dential records and in prohibiting Respondents from interfering with the core functions. (See Comm ?n on Judicial Performance v. Superior Court (2007) 156 Cal.App.4th 617 [67 Cal.Rptr.3d 434] [granting the CJP writ of mandate relief from an order directing the CJP to produce information that was con?dential pursuant to CJ Rule 102].) The Auditor?s right, or lack thereof, to view the disputed con?dential documents, as well as the right to conduct an audit on the three disputed topics, are also proper subjects of an action for declaratory relief. (See Glendale City Employees Assn, Inc. v. City of Glendale (1975) 15 Cal.3d 328 [124 Cal.Rptr.513, 540 P.2d 609].) Further, the interpretation Of statutes is a proper matter for declaratory relief. (Ibid) ?[T]hat an action in declaratory relief lies . . . does not prevent the use of mandate.? (Id. at p. 343 fn. 20.) The has clearly established a controversy suf?cient to justify declaratory relief. (Walker v. Los Angeles County, 55 Cal.2d 626, 636 [361 P.2d 247, 12 Cal.Rptr. 671] [?Declaratory relief must be granted when the facts justifying that course are suf?ciently alleged . . No party has questioned the Court?s jurisdiction or authority to issue a writ of mandate or declaratory relief concerning the matters presented in this action (while disputing the merits of those matters). ANALYSIS A. CJP RULE 102 PROHIBITS THE AUDITOR FROM REVIEWING THE CONFIDENTIAL RECORDS AND CANNOT BE OVERRIDDEN BY THE LEGISLATURE The primary dispute presented is whether the Auditor?s authority under Government Code section 8545.2 overrides the con?dentiality provided by Article VI section 18 subdivision of the California Constitution and CJ Rule 102. The Court concludes that it does not. First, CJP Rule 102 prohibits release Of these records outside of the CJP and provides no exception for 5 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce CPF-16-515308 STATEMENT OF DECISION release to the Auditor. Second, the legislative history of Article VI section 18 re?ects the voters? intent to allow the CJP to decide which of its records that do not constitute formal proceedings are absolutely con?dential. Third, due to the clear con?ict between the Auditor statute and the constitutional provision governing the CJ P, Government Code section 8545.2 cannot constitutionally override the exercise of its constitutional authority in CJP Rule 102. 1. CJP Rule 102 provides no exception for the Auditor to access the con?dential ?les Article VI section 18, subdivision of the California Constitution provides that, ?[t]he commission shall make rules for the investigation of judges. The commission may provide for the con?dentiality of complaints to and investigations by the commission.? (Cal. Const., art. VI, 18, subd. The exercised this constitutional authority when it enacted Rule 102. CJP Rule 102 provides for absolute con?dentiality subject to enumerated exceptions: ?Except as provided in this rule, all papers ?led with and proceedings before the commission shall be con?dential.? (Rules of Com. on Jud. Performance, rule 102, subds. ?The Commission?s rule 102 provides that, except as stated in that rule, all nonpublic papers and proceedings are absolutely con?dential.? (Comm on Judicial Performance v. Superior Court, supra, 156 Cal.App.4th at p. 722 [hereinafter ?Comm ?n on Judicial CJP Rule 102 contains no exception for the Auditor. Based on the plain language of Rule 102 and the holding of Comm ?n on Judicial Performance, the Court ?nds that records made con?dential pursuant to CJP Rule 102 cannot be Viewed or copied by, or provided to, anyone outside of the CJ P, except as explicitly stated in an exception to that Rule. Because there is no exception to Rule 102 for the Auditor, the Auditor is not permitted to access the CJ P?s con?dential documents. The Court?s reading of Rule 102 is supported by established rules of statutory construction. ?The proper rule of statutory construction is that the statement of limited exceptions excludes others, and therefore the judiciary has no power to add additional exceptions; the enumeration of speci?c exceptions precludes implying others.? (S. V. v. Superior 6 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce CPF-16-515308 STATEMENT OF DECISION Court (2017) 13 Cal.App.5th 1174, 1182 [221 Cal.Rptr.3d 298] [internal citations and quotations omitted].) Given the clear enumeration of exceptions to Rule 102, no additional exceptions can be implied. Further, the interpretation of its own constitutional authority, as set forth in Rule 102, ?is accorded considerable weight, and courts generally will not depart from such construction unless it is clearly erroneous or unauthorized.? (Adams v. Commission on Judicial Performance, supra, 8 Cal.4th at pp. 657-658 [34 Cal.Rptr.2d 641, 882 P.2d 358] [internal citation omitted].) California courts have rejected other attempts to breach the con?dentiality of records and proceedings. In Mask v. Superior Court (1979) 25 Cal.3d 474 [601 P.2d 1030], the Supreme Court held that a Rule of Court allowing investigative hearings to be open to the public was unconstitutional because it con?icted with the then-applicable constitutional provision for I con?dentiality of investigations. (Id at p. 499.) In Comm ?n on Judicial Performance, supra, 156 Cal.App.4th 617, the Court held that the discovery statutes and Pitchess procedure cannot be used to obtain con?dential CJP records, even for an in camera review, because CJP Rule 102 did not provide any such exception. (Id. at pp. 622?25.) The court noted that ?the superior court judge presiding over the proceedings in which the Commission?s con?dential records are requested has no more right to see the Commission?s records than does any other member of the public.? (1d. at p. 625.) The conclusion in Comm ?n on Judicial Performance applies with equal force to the Auditor?s access to similar records. The Auditor argues that the designation of documents as ?con?dential? means only that those documents are not to be ?published? to the public at-large. The Auditor insists that it will not release any con?dential records to the public. The Auditor also contends that the con?dential ?les should not be kept from government of?cials seeking to ful?ll their statutory duties. No apposite case law is cited for this proposed de?nition of ?con?dential,? and it is inconsistent with the Court of Appeal?s analysis in Comm ?n on Judicial Performance, supra, 156 Cal.App.4th 617. The Auditor also fails to reconcile its argument with the detailed exceptions set forth in Rule 102, many of which would be unnecessary if the Auditor were correct (as 7 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce CPF-16-515308 STATEMENT OF DECISION would article VI section (18.5 of the California Constitution). ?An interpretation that renders related provisions nugatory must be avoided.? (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].) CJP Rule 102 is an exercise of the constitutional authority under article VI section 18, subdivision The rule contains no exception for the Auditor. Under a clear reading of CJP Rule 102 and case law interpreting it, providing the con?dential documents to the Auditor would violate Rule 102. 2. Relevant legislative history demonstrates that the con?dentiality of nonpublic CJP records is absolute The Court?s holding is supported by the legislative history underlying the CJ P?s con?dential records and proceedings. This history con?rms that con?dentiality of CJ records is absolute except where the voters or the have made explicit exceptions. The CJP was created in 1960 by Proposition 10, which established the ?Commission on Judicial Quali?cations,? a nine?member body comprised of ?ve judges, two lawyers and two citizens to investigate allegations of judicial misconduct. (Former art. VI, 1, subds. 10, subd. added by initiative, Gen. Elec. (Nov. 8, 1960), commonly known as Proposition 10.) Proposition 10 speci?ed that commission proceedings would be con?dential until a recommendation was made by the commission to the Supreme Court for removal of the judge from of?ce. (Id; Adams v. Commission on Judicial Performance, supra, 8 Cal.4th at pp. 637- 38.) In 1966, Proposition 1a modi?ed article VI section 18 to authorize the Judicial Council to ?make rules implementing this section and providing for con?dentiality of proceedings.? (Former art. VI, 18, subd. added by initiative, Gen. Elec. (Nov. 8, 1966), commonly known as Prop. la.) In 1974, the Supreme Court rejected a judge?s assertion that he had a right to an open hearing, recognizing that ?[t]his State has adopted a constitutional policy that proceedings before the Commission shall be con?dential.? (McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 520 [116 Cal.Rptr. 260, 526 P.2d 268].) 8 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce CPF-16-515308 STATEMENT OF DECISION 1976, the voters approved Proposition 7, which renamed the Commission on Judicial Quali?cations as the Commission on Judicial Performance. This Constitutional amendment also permitted the CJ to privately admonish judges of any improper conduct or failure to perform their duties, subject to review of the Supreme Court. (Former art. VI, 18, subd. added by initiative, Gen. Elec. (Nov. 2, 1976), commonly known as Prop. 7.) In 1988, voters approved Proposition 92, which created several of the exceptions to con?dentiality that are now in CJ Rule 102. (Former art. VI, 18, subds. added by initiative, Gen. Elec. (Nov. 8, 1988), commonly known as Prop. 92.) The arguments in favor of Proposition 92 informed voters that it would ?open disciplinary proceedings against judges in a limited but reasonable way . . . It simply allows an accused judge or the commission to open proceedings subsequent to formal charges in appropriate cases.? (CJ P?s Request for Judicial Notice ?led September 8, 2017, EX. 1 at p. 58.) In 1994, the voters again amended the Constitution with Proposition 190, giving the CJ the power to decide whether, and the extent to which, complaints and investigations are con?dential. PrOposition 190 mandated open hearings in all cases involving formal charges (Cal. Const, art. VI, 18, subd. The amendment also conferred the authority for censure and removal determinations upon the CJ (rather than the Supreme Court), in addition to private or public admonishment of judges. (Cal. Const, art. VI, 18, subd. The amendment also transferred the power to promulgate rules governing the from the Judicial Council to the CJP and stated the CJP ?shall make rules for the investigation of judges? and ?may provide for the con?dentiality of complaints to and investigations by the commission.? (Cal. Const, art. VI, 18, subd. The legislative history of Proposition 190 makes it clear that the voters changed the con?dentiality rules to make only proceedings on formal charges public. That is where the voters drew the line. They maintained absolute con?dentiality for other proceedings and documents, subject to the rulemaking discretion. 9 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce STATEMENT OF DECISION Proposition 190 also adopted article VI section 18.5, which was based on language drawn from Senate Constitutional Amendment 37. Section 18.5 expressly authorizes the to provide con?dential records to judicial appointing authorities. Its history shows the Legislature?s understanding that the con?dentiality provided by CJP rules is absolute and would prohibit such disclosure absent a constitutional amendment. The relevant legislative bill analysis concerning what became section 18.5 re?ects the Legislature?s understanding that the con?dentiality of CJ records is absolute. ?Although public disciplinary measures can be taken, most disciplinary actions are of a secret nature. These secret disciplinary actions cannot be disclosed to anyone under the con?dentiality rules established by the Judicial Council.? (CJP RJN Ex. 3) ?Existing law provides for a level of con?dentiality which disallows a judge?s disciplinary record from being shared with appointing authorities who are considering the judge for another position.? (CJ RJN Ex. 4.) The Legislature concluded that the Governor, the President of the United States, and the Commission on Judicial Appointments needed to have information on con?dential CJ proceedings in order to make wise appointment decisions about those judges. (CJP RJN Ex. 5 [?The author suggests that the need for this legislation is self?evident. If Commission discipline activity is predominately private, appointing authorities must have access to such information before momentous and uninformed decisions are The Legislature thus understood that even the Governor or President cannot see con?dential CJ records when deciding to elevate a judge without express authorization in the Constitution or CJP rule. This conclusion also applies to the Auditor. The legislative history behind Article VI section 18 is consistent with the position that its confidential records and proceedings are absolutely con?dential, subject only to explicit exceptions in the California Constitution or CJP Rule 102. This Court thus concludes that CJ Rule 102 is constitutionally authorized and prohibits release of the CJ P?s con?dential records to the Auditor. 10 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce STATEMENT OF DECISION Government Code section 8545.2 is unconstitutional as applied to the con?dential records and proceedings Because CJP Rule 102 prohibits providing the con?dential ?les to the Auditor, the Court must analyze whether Government Code section 8545.2 overrides CJ Rule 102. The Court concludes that the Auditor?s statutory right to review con?dential agency records under section 8545.2 is unconstitutional as applied to the con?dential records because it con?icts with Rule 102. The Court?s ruling is based on the fundamental hierarchy between the Constitution and state statutes. ?The California Constitution is ?the supreme law of our state? . . ., subject only to the supremacy of the United States Constitution.? (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 250 [73 Cal.Rptr.3d 825] [citation omitted].) ?Wherever statutes con?ict with constitutional provisions, the latter must prevail.? (Delaney v. Superior Court (1990) 50 Cal.3d 785, 800, fn. 11 [268 Cal.Rptr. 753, 789 P.2d 934] [quoting People v. Navarro (1972) 7 Cal.3d 248, 260 [102 Cal.Rptr. 137, 497 P.2d 481]]; Citizens Assn. ofSunset Beach v. Orange County Local Agency Formation Com. (2012) 209 Cal.App.4th 1 182, 189 [147 Cal.Rptr.3d 696] [?Constitutions trump con?icting It is a ?well-known principle of constitutional construction? that ?[t]hose matters which the constitution speci?cally con?des to a speci?ed body or agency the legislature cannot directly or indirectly take from [its] control.? (State Board of Education v. Levit (1959) 52 Cal.2d 441, 461 [343 P.2d 8] [internal marks and citations omitted].) ?Powers, obligations, and rights bestowed or declared by the Constitution may not be amended, modi?ed, or derogated by statute, whether that statute is adopted by the Legislature or the initiative method.? (Fair Political Practices Com. v. State Personnel Ed. (1978) 77 Cal.App.3d 52, 56 [143 Cal.Rptr. 393], overruled on other grounds in Paci?c Legal Foundation v. Brown (1981) 29 Cal.3d 168, 192 [172 Cal.Rptr. 487]; People v. Superior Court (Madge) (1997) 54 Cal.App.4th 407, 412-413 [62 Cal.Rptr.2d 721], as modi?ed (May 9, 1997) legislative regulation must not ?substantially impair? an express provision of the California 11 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce STATEMENT OF DECISION Here, Article VI section 18, subdivision of the California Constitution expressly bestows on the the power to determine the rules for con?dentiality of the non-public records. The CJP did so, enacting Rule 102, which renders all such records con?dential and contains no exception for the State Auditor, though other exceptions are provided. (Rules of Com. on Jud. Performance, rule 102, subds. Government Code section 8545.2 cannot override the constitutional grant of power in Article VI section 18 or its exercise in Rule 102. The Auditor argues that the Legislature has the power to ?address? the con?dentiality of the records because article VI section 18 subdivision does not provide the CJP with ?sole? or ?exclusive? authority to make rules for con?dentiality. This argument ignores the plain fact that Government Code section 8545.2 and Rule 102 directly con?ict and one must control over the other. The relevant Constitutional analysis does not turn on whether the Constitution says ?sole,? but on whether the legislation directly or indirectly modi?es or derogates a power the constitution confers speci?cally in another body. (State Board of Education v. Levit, supra, 52 Cal.2d at p. 461; Fair Political Practices Com. v. State Personnel Bd, supra, 77 Cal.App.3d at p. 56.) Where, as here, there is a clear con?ict, the Legislative enactment must give way. The Auditor also argued that the Legislature was the entity that created the CJ as well as its powers concerning con?dentiality. That is not correct. Although the various Propositions amending the Constitution discussed above were referred to the voters by the Legislature, it is the electorate, not the Legislature, that has the power to change the state Constitution. (Cal. Const. art. I, 4.) The constitutional right to control the con?dentiality of its documents is consistent with the law in other states. As the United States Supreme Court noted in Landmark Communications, Inc. v. Virginia (1978) 435 US. 829, 834-835 [98 1535, 56 L.Ed.2d as of 1987, the majority of states, the District of Columbia, and Puerto Rico, have established by constitution, statute, or court rule, some type of judicial inquiry and disciplinary procedures, and all of these jurisdictions, except Puerto Rico, provided for the con?dentiality of judicial 12 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce CPF-16-515308 STATEMENT OF DECISION disciplinary proceedings. Currently, all 50 states have disciplinary procedures with varying degrees of con?dentiality. GRAY, How Judicial Conduct Commissions Work, 28 JUST. SYS. J. 405, 405 (2007)). Courts in other states have also held that the constitutional or statutory authority of similar entities to the CJP to make their records con?dential preserves the agencies? independent function and cannot be overridden by other branches of government. (See Garner v. Cherberg (1988) 111 Wash.2d 811, 812-814 [765 P.2d 1284] [cited with approval in Comm ?n on Judicial Performance, supra, 156 Cal.App.4th at p. 625] [holding that the legislative committee could not use a subpoena to force disclosure of records of Commission on Judicial Conduct that would cause violation of Commission rules of con?dentiality]; Forbes v. Earle (Fla. 1974) 298 So.2d 1, 2-5; Stern v. Morgenthau (1984) 62 331, 333?336 [476 810, 465 349].) Finally, the Auditor presents a series of policy arguments as to why the Auditor ?should? be able to access the records at issue or ?needs? to access those records. These arguments, regardless of their merit or popularity, have no bearing on the legal questions presented. As the Court of Appeal noted in People?s Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316 [226 Cal.Rptr. 640], is well to be clear at the outset what this case is and is not about . . . [T]he issue before this court is one of law, not policy.? (Id at p. 322.) This Court?s holding is based on which party?s (the CJ or the Auditor) position ?is constitutional, not whether it is necessary or wise.? (Ibid.) Ultimately, this action is about a clear con?ict between the CJ P?s constitutional authority under Article VI section 18, subdivision to make its complaints and investigations con?dential and the Auditor?s general statutory right of access to con?dential ?les under Government Code section 8545.2. The Court ?nds that Government Code section 8545.2 cannot constitutionally override CJP Rule 102, and thus that the Auditor has no legal right to access the con?dential records. 13 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce STATEMENT OF DECISION THREE OF THE TOPICS REQUESTED IN THE AUDIT ALSO VIOLATE THE SEPARATION OF POWERS DOCTRINE As an additional ground for granting its petition, the CJ argues that three of the topics in the Auditor?s requested audit, Topics 2, 5, and 12, violate the separation of powers doctrine by infringing on the CJ P?s core function. The Court notes that the type of second-guessing of the discretionary decisions required by these topics is likely not possible without reviewing con?dential records that the Auditor has no right to access. The Court will, however, analyze the separation of powers issue presented as an alternative basis for its decision. The Court concludes that Topics 2, 5, and 12 would violate the separation of powers doctrine and grants the petition on this issue.2 The California Constitution divides power among three branches of state government: the Legislative branch, the Executive branch, and the Judicial branch. (Perez v. Richard Roe 1 (2006) 146 Ca1.App.4th 171, 176 [52 Ca1.Rptr.3d 762], as modi?ed (Jan. 26, 2007).) Although there is a certain overlap and interdependence among the three branches, each is constitutionally vested with ?core? or ?essentia functions that the-others may not perform. (Ibid) Protection of those core functions is guarded by the separation of powers doctrine and is embodied in a constitutional provision, which states that one branch of state government may not exercise the powers belonging to another branch. (Id. at pp. 176-177; Cal. Const, art. 111, 3.) This does not mean that the activities of one branch are entirely immune from regulation or oversight by another. (People v. Bunn (2002) 27 Cal.4th 1, 16 [115 Cal.Rptr.2d 192, 37 P.3d 380].) ?As long as such enactments do not ?defeat or materially impair? the constitutional functions of the courts, a ?reasonable? degree of regulation is allowed.? (Ibid) ?Nevertheless, the separation of powers doctrine prohibits the Legislature ?from arro gating to itself core functions of the executive or judicial branch.?? (Ibid. [citation omitted]; see also People v. Superior Court (Mudge), supra, 54 2 For the same reasons, the Court also grants Petitioner?s Fourth Cause of Action, requesting a declaratory judgment that the Auditor is prohibited from auditing the exercise of the core functions by re-evaluating or second-guessing decisions made in speci?c instances. 14 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce CPF-16-515308 STATEMENT OF DECISION Cal.App.4th at pp. 412?413 legislative regulation must not ?substantially impair? an express provision of the California The Legislature thus may not use its powers to ?defeat or materially impair? the exercise of its fellow branches? constitutional functions, nor ?intrude upon a core zone? of another branch?s authority. (Howard Jarvis Taxpayers Assn. v. Padilla (2016) 62 Cal.4th 486, 499 [196 Cal.Rptr.3d 732, 363 P.3d 628], reh ?g denied (Feb. 24, 2016).) Nor may the Legislature?s investigative power ?be used to trench upon matters falling outside the legislative purview.? (Ibid) Accordingly, the Court?s second task is to analyze whether Topics 2, 5, and 12 ?intrude upon? the CJ P?s core authority. Topic 2 assesses whether the ?is taking an appropriate and reasonable course of action for the complaints it reviews and for determining the disposition of each complaint.? While this appears to directly question the discretionary decision-making, which would interfere with the CJ P?s core function, the State Auditor con?rmed under oath that her of?ce will not ?engage in reweighing evidence or second?guessing the propriety of determinations based on the facts presented to it. The weighing of evidence and the making of determinations based on such evidence falls squarely within CJ P?s exercise of discretion.? (Declaration of Cal. State Auditor Elaine M. Howle in Support of Opposition to Petition for Writ of Mandate, ?led June 12, 2017 ?Howle Decl.? 11 Given the Auditor?s concession that the Auditor cannot second-guess the decision making, the Court grants the CJ P?s petition with respect to Topic 2 to the extent that topic calls for such an analysis. Second, Topic 5 calls for an assessment of ?the commission?s process for evaluating the credibility of evidence, witnesses, and statements made.? This topic again appears to involve the Auditor?s attempt to evaluate how the decides which witnesses and evidence to believe. However, again, the Auditor appears to agree that it will not ?engage in evaluating whether CJ made correct or incorrect determinations in particular cases, as that would be beyond the scope of the audit.? (Howle Decl. Because of the Auditor?s concession, the Court grants the petition with respect to Topic 5. Third, Topic 12 states that the Auditor will ?evaluate the outcomes of a selection of cases 15 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce STATEMENT OF DECISION and the discipline imposed by the Commission including cases that resulted in private discipline.? Instead of taking a consistent position with respect to Topics 2 and 5, both of which are similar to Topic 12, the Auditor claims Topic 12 is not auditing whether the was ?just, fair, or meritorious,? but only whether the CJ P?s outcome is ?consistent with the Commission?s own procedures and goals.? (Howle Decl. 11 To evaluate whether the outcome of a case is consistent with the ?goals? strikes at the core Of the discretionary function. At the ?rst hearing, the Court asked the Auditor to explain how Topic 12 was not ?second guessing? the decisions and interfering with the core function. Counsel responded that these topics were not set in stone, but did not provide a satisfactory response to the Court?s query. Because the Court ?nds that Topic 12 is similar to Topics 2 and 5, the Court grants the petition with respect to Topic 12. C. THE AUDITOR HAS NO AUTHORITY TO CHARGE THE CJP FOR THE COST OF THE AUDIT Finally, the CJP sought a declaratory judgment from this Court that the State Auditor is prohibited from charging the CJP for the cost of the audit. The Auditor conceded in its opposition that it has no legal authority to do so. ?[T]he Auditor has no authority to impose costs on any agency it audits . . (Respondents? Opposition to CJ P?s Petition for Writ of Mandate, ?led June 12, 2017, at p. 38.) Thus, this Court grants the requested, undisputed, declaratory relief. CONCLUSION Based on the foregoing, the instant Petition for Writ of Mandate, or in the Alternative, Complaint for Declarative and Injunctive Relief is GRANTED. IT IS HEREBY ORDERED THAT: 1. The Court ?nds and declares that the State Auditor has no legal authority to review any document in the possession of the CJ made con?dential by CJP Rule 102; 2. The Court ?nds and declares that Government Code section 8545.2 violates Article VI section 18, subdivision of the California Constitution to the extent it purports to 16 Commission on Judicial Performance v. Elaine M. Howle and the California State Auditor?s Of?ce CPF-16-515308 STATEMENT OF DECISION override Rule 102; 3. The Court shall issue a Peremptory Writ of Mandate prohibiting the State Auditor and its agents from seeking any records from the CJP which are con?dential pursuant to CJP Rule 102; 4. The Court ?nds and declares that the CJP and its agents have no legal obligation to provide any materials to the State Auditor which are con?dential under CJ Rule 102; 5. The Court ?nds and declares that the State Auditor may not lawfully conduct audit topics 2, 5, or 12 to the extent such topics involve ?reweighing evidence or second- guessing the propriety of determinations based on the facts presented to it.? 6. The Court shall issue a Peremptory Writ of Mandate prohibiting the State Auditor and its agents from conducting any inquiry into audit topics 2, 5, or 12 to the extent such inquiry involves reweighing evidence or second?guessing the propriety of determinations based on the facts presented to it; and 7. The Court ?nds and declares that the State Auditor has no legal authority to charge the CJP for the cost of any audit it conducts of the CJP. IT IS SO ORDERED. Dated: lg?? 2 ,2017 17 Commission on Judicial Performance v. Elaine M. Howie and the California State Auditor?s Of?ce STATEMENT OF DECISION SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO COMMISSION ON JUDICIAL Case N0.: 15308 PERFORMANCE, Petitioner/Plaintiff, CERTIFICATE OF MAILING 1013a(4)] vs. ELAINE M. HOWLE, in her of?cial capacity as CALIFORNIA STATE AUDITOR, and the CALIFORNIA STATE OFFICE, Respondent/Defendant. 1, Linda Fong, a deputy clerk of the Superior Court of California, County of San Francisco, certify that I am not a party to the within action. On December 19, 2017, I served the attached STATEMENT OF DECISION GRANTING PETITION FOR WRIT OF MANDATE OR, IN THE ALTERNATIVE, COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, by placing a copy thereof in a sealed envelope, addressed as follows: James M. Wagstaffe, Esq. Myron Moskovitz, Esq. Michael von Loewenfeldt, Esq. Sherri S. Kaiser, Esq. KERR WAGSTAFFE LLP William D. Stein, Esq. 101 Mission Street, 18?h Floor MOSKOVITZ APPELATE TEAM San Francisco, CA 94105 90 Crocker Avenue Piedmont, CA 9461 1 and, I then placed the sealed envelopes in the outgoing mail at 400 McAllister Street, San Francisco, CA 94102 on the date indicated above for collection, attachment of required prepaid postage, and mailing on that date following standard court practices. Dated: DEC 1 2017 T. MICHAEL YUEN, Clerk ,5ch Linda g, Deputy C1