Judging the Judges, Policing the Police
Civilian Oversight Gains Popularity, Despite Flaws
BY TRACY IDELL HAMILTON
Sue McMeans is a SLO County court watcher.
Not one of those people that sits ringside at the biggest criminal cases, but a family court watcher, invited by women embroiled in custody battles, women unfamiliar with their rights or the system. She takes notes on the proceedings and scrutinizes the evidence introduced in each case, making sure the judge's decision matches that evidence and testimony.
Too often they do not, McMeans says. She says she has seen judges and commissioners ignore evidence, use discredited psychological theories, and use the testimony of the same psychological evaluators case after case when making child custody decisions.
But when McMeans or any of the other court watchers with The Real F.A.C.T.S., (Forum on Abused Children and "The System") wants to delve more deeply into a case, or ask more questions about a decision, she cannot. Confidentiality laws preclude serious scrutiny of such decisions, she says, while judicial immunity makes it difficult to root out problem judges.
That's why The Real F.A.C.T.S., as part of a loose coalition of similar groups around the state and the nation, is interested in a whole host of reforms, including some sort of civilian review of the family court system. "It's not just happening in San Luis Obispo," McMeans said. "And of course it's not everyone, there are good people in the system. But the bad ones are causing a lot of damage," she said.
"There's just no accountability whatsoever," says Karen Winner, the New York—based author of "Divorced from Justice," a documented history of abuse faced by women and children in the family court system. Winner has most recently investigated claims of family court abuse in Marin and Sacramento counties, producing scathing reports that have ended with recall efforts against judges in both counties. "It's a horribly flawed system, because it is self-policed," she says.
Under the "Fifteen Year Plan to Ensure Children's Safety in Family Courts," family advocacy groups that sent representatives to the Strategic Planning Summit for the Safe Child last week in San Diego would like to develop and implement citizen oversight of family court as one consequence of its efforts at research, education, advocacy, and policy reform. Real F.A.C.T.S. is one such group.
That type of oversight might be a long time coming, as there is currently no legal mechanism to create such a body over the judiciary, family court or otherwise.
But as civilian review becomes more accepted in law enforcement, is it only a matter of time before other bodies and processes are open to civilian review?
Civilian review of law enforcement
According to the American Civil Liberties Union, civilian review of police activity was first proposed in the 1950s because of dissatisfaction with internal disciplinary procedures of police departments. Many citizens felt their complaints were not taken seriously, and misconduct was often covered up, according to ACLU literature.
What began as a small movement has continued to gain currency today: By 1997, more than 75 percent of the nation's largest cities had civilian review systems. A 1998 report placed the number of commissions, boards and auditors nationwide at 94, a 147 percent increase since 1990, according to Samuel Walker, a national expert on civilian review and a member of the Department of Criminal Justice at the University of Nebraska in Omaha.
Noting that most large cities already have some type of review, Walker said growth is quickest now in small- to medium-sized cities.
In California, 14 cities or counties have review commissions, from Berkeley's, which was established in 1973, to the most recent addition in Riverside County. Here in San Luis Obispo, an ad hoc committee on establishing citizen review of the Sheriff's Department is in the embryonic stages, according to Hank Alberts, the head of the local chapter of the ACLU.
His calls for a review commission increased when it was revealed that the deputies involved in two unrelated 1997 civilian deaths received commendations even as the county quietly paid $370,000 in settlements to the victims' families.
In each case, public statements made by law enforcement did not correspond with information learned after the lawsuits were filed, and those discrepancies have never been addressed or corrected by the department. The department's own documents showed that then-Sheriff Ed Williams made several inaccurate characterizations to the press, creating a far different picture from what eventually emerged.
"Citizens have the right to oversee every public agency they support, particularly ones that can take lethal actions," said Alberts at the time of the settlements.
At the time, current Sheriff Pat Hedges was quoted as saying the ACLU has not shown a need for such a body, "and I'm not inclined to give over control to another body." Hedges was out of town when New Times called for a more recent response.
That's one of the most common arguments against a civilian review board, Alberts says. "People say to me, 'Oh, we just don't get that many complaints against the police around here.' And I ask, how do you know?"
He pulls out a photocopy of an April 27, 1999 letter from Hedges responding to a citizen complaint. It is brief, almost terse: "The investigation into your complaint against an officer of this department is complete. After a review of the investigation, I find the complaint to be "unfounded" [italics and quotation marks in original].
The letter continues for two more sentences: "Section 832.7 of the California Penal Code does not allow me to discuss the complaint in further detail with you. If you have any questions regarding the process, please contact the Professional Standards Unit during business hours."
"How would you feel if you had a complaint, and that's all you received in reply?" asks Albert. "They will only reveal the process, never the particulars of a complaint. A review board would demand reasons."
The Penal Code section Hedges cites–which keeps peace officer personnel records confidential–is one of the many exemptions to California's open records act that law enforcement requested and lawmakers backed. This confidentiality is also why so many people are calling for civilian oversight. Civilian review would be able to keep statistics on the numbers and types of complaints against a particular officer, something it is impossible to do now.
And while many law enforcement officials are opposed to the idea of civilian review, others who work with civilian review boards appreciate the added measure of confidence they bring to the public.
"It may not be for every police department," Richmond Police Chief Bill Lansdowne told the Santa Rosa Press Democrat about the 15-year-old commission in Richmond. "It works for the city of Richmond very well, and it works for me very well."
In an unprecedented move, perhaps in response to the ongoing Los Angeles Police Department Rampart scandal, Los Angeles County Sheriff Lee Baca in July of this year proposed adding six civilian attorneys and a panel of retired judges to add credibility and independence to his internal investigations. Under his plan, civilians would have unfettered access to internal documents and other records, and even eye-witnesses.
Baca said he is even considering a new method for dealing with lower-level violations by deputies in another attempt to stem problems before they spin out of control. "I want to make a big deal out of the little things," Baca told the Los Angeles Times.
Different review systems
While the Los Angeles Sheriff's plans are unique, most civilian review systems vary tremendously in scope and power. Some boards serve as advisors; others recommend disciplinary action and policy changes. Actual disciplinary measures, however, almost always remain with the police chief or sheriff.
Alberts says an effective board must have three things: investigative power, subpoena power, and initial jurisdiction of complaints–that is, the complaint review begins with the review board, not the law enforcement agency. The board of non-officers then makes a recommendation to the police chief or sheriff.
Most review boards have some type of subpoena power, but all of them don’t have initial jurisdiction.
In some systems, a police officer conducts the initial fact-finding and then submits a report to a civilian board for a recommendation. Other systems provide even less independent authority, and begin with an officer’s doing the initial fact-finding and making a recommendation to the chief or sheriff. If the citizen who brought the complaint isn’t satisfied, he or she may then appeal to a board that includes civilians.
Also important is the power to analyze complaints data and use-of-force trends. If a board repeatedly sees the same names popping up in citizen complaints, or if it sees problems with a specific policy within an enforcement agency, Alberts said, it can bring those to light, and recommend policy changes.
"People would be outraged if sex offenders’ names were not released," Alberts said. "But we've got police officers with guns and billy clubs out there, with the power of life and death in their hands, and we don't know which ones have received repeated complaints."
Civilian review systems can be put into place in a number a ways. A county board of supervisors or a city council can call for a system’s creation, which often happens after public pressure. Civilian review boards can also be created through a ballot measure, which is the route Alberts' ad hoc committee would like to take. Because it takes time for public support to coalesce, he said, the committee is shooting for a November 2002 measure.
Review beyond law enforcement
Although civilian review of law enforcement continues to gain inpopularity, Alberts said he did not think the ACLU has looked into the possibility of judiciary oversight, and questioned the idea himself.
"Getting into judging the judges, you could have some sticky legal situations with lay people overseeing legal decisions."
Winner disagreed strongly with Alberts' statement, noting that those against civilian oversight of law enforcement often make a similar argument–that laypersons should not be second-guessing the conduct of an officer in the field. "We already have juries composed of citizens," she said. "[Isn’t the ACLU] concerned about juries who make life and death decisions? There are no reasons that juries couldn't also serve as a check and control over the system. There are so many potentials for abuse, and so little scrutiny into family cases."
San Luis Obispo County Superior Court Judge Donald Umhofer, a supervising judge on civil matters who said he occasionally hears family court cases, is adamantly opposed to the idea. "You want judges to be independent and fair, and not beholden to the legislature or any constituency," he said.
But that lack of accountability to any constituency is exactly what Winner and others fear. Her arguments for some type of civilian oversight of complaints in family court follow similar lines to Alberts'. In addition to public confidence that complaints are actually being investigated, a review board would be able to track the types of complaints against judges and their frequency, and offer policy suggestions to help make the system run better. "So much misconduct right now is not being exposed," she said.
Opponents of civilian oversight of law enforcement insist that there are sufficient legal channels in place to weed out bad cops or make policy recommendations. Sheriff Hedges has said there is civilian oversight already: A new sheriff may be elected every four years. Similarly, those averse to the concept of judicial review by civilians point out that a body already exists to deal with complaints against judges.
In California, that body is the Commission on Judicial Performance. It consists of an eleven-member panel comprising six public members, three judges, and two attorneys. The commission investigates complaints and issues confidential advisory letters. Its members formal discipline in the form of private admonishment, public admonishment, or public censure. In serious cases, the commission may order that a judge be removed from office.
Umhofer said that the commission used to be weighted more heavily with judges, but that an expansion of the public's role has increased the number of investigations the commission undertakes each year.
In its June newsletter, Real F.A.C.T.S. noted that of 1,088 complaints received by the commission, 950 were closed after initial review, 71 without discipline or an advisory, 53 with an advisory; in three, private admonishments were meted out, and seven ended in public admonishments. Only two judges received public censures, and two others "resigned or retired with proceedings pending."
"This lack of results," states the newsletter, "has made it clear that few judges are disciplined by their peers. Left with little recourse, citizens and advocacy groups have turned to either exposure of misconduct or recall."
In Marin County, Winner, who has been hired by family advocacy groups to investigate family court procedures in various California counties, released a report detailing alleged misconduct in the family court system there. Three judges were the target of a recall effort, and a separate legal action was taken against a family law commissioner. (Because they are appointed, commissioners cannot be recalled.)
Even though at least one Marin County family court judge has already stepped down, Winner is not hopeful about the recall effort, even as similar efforts are being mounted against judges in Sacramento and Amadore counties.
A citizen commission with subpoena power, she said, could be more effective at an earlier stage, by spotting troubling decisions or patterns of misconduct.
"We're not doing secret stuff in there," said Umhofer in response. "We invite anyone to come on in and see what judges are doing." Umhofer said he believes the citizenry wants an independent judiciary, not one beholden to any group–not mothers’ groups, fathers’ groups, child advocacy groups.
Troubles in civilian review paradise
Even Winner acknowledges that there can be problems with civilian review systems.
Choosing members of a commission can become political, she said, and could lead to cronyism or conflicts of interest.
A perfect example might be that of the city of Los Angeles, where a five-member citizen commission is made up entirely of mayoral appointees. Given the depth and breadth of the current Rampart scandal, it's pretty clear that not much police oversight was going on, externally or internally.
Without the power to actually censure a judge or discipline a police officer, how much can a commission really do? In the four years since the city of Santa Cruz convened its commission, it has never called for public hearings or an independent investigation, despite 178 complaints and two highly publicized officer-related shootings in that time.
Mediation, the first step in that process, has also never once been exercised, perhaps because either side, public or police, can decline to participate. In eight opportunities, all but one of the police officers have refused.
Critics have called the Santa Cruz board, and others like it, nothing but another layer of useless politically correct bureaucracy, one that can cost local taxpayers hundreds of thousands of dollars per year.
For judicial oversight, especially in family law, confidentiality of records would be an ongoing problem, said Real F.A.C.T.S. consulting attorney Stephen C. Ronca. "Only a grand jury could access those files," he said. "You could appoint a commission to sit in on court cases, but still, many of those decisions are made in private."
Consensus about how to create some kind of oversight system for judges has not coalesced either. While groups involved with the Summit for the Safe Child lists oversight as one of its goals, it cannot yet offer details of just how judicial oversight might work.
Indeed, McMeans and others are quick to point out that civilian oversight would only be one aspect of dealing with family court shortcomings. Additional training and research, education at both the judicial and citizen level, and greater advocacy are all necessary, she said.
A group known as Jail4Judges has proposed an amendment to the California constitution that would create three statewide "Special Grand Juries" for the sole purpose of investigating complaints against judges. Those grand juries would have the power to sanction judges by fining them or removing them from the bench. They would even have the power to indict judges and subject them to criminal proceedings.
Winner says she has heard of the group but does not have full confidence in the organization. "I'm not sure what their agenda is," she said.
John Culver, a Cal Poly professor and expert on both federal and state judiciaries, noted the question of agenda is an important one. He called civilian oversight "well-intentioned, but akin to vigilantism." Judges make mistakes like everyone else, he said, suggesting that perhaps groups calling for oversight are more concerned with specific decisions than with the judges themselves.
"I don't think judicial misconduct is as big a problem as people might think," he said, noting that media coverage can contribute to perceptions of widespread misconduct.
Increased public confidence enough?
On the other hand, Culver agreed with Real F.A.C.T.S.' assessment that the state-sanctioned Commission on Judicial Performance may very well be too cozy with its intended targets to do much good. Judges and lawyers, he said, just don't turn each other in–something that has also been documented in law enforcement.
Much as many people would like it, oversight of the judiciary, or even just family court, would almost certainly not include the power to indict. Even so, and even if judicial oversight does little more than keep public confidence high that their complaints are being taken seriously, it may well be worth it, Culver said.
Culber added that the letter from Sheriff Hedges dismissing a citizen complaint as "unfounded," with no further explanation, was "absurd."
"I'd be more furious with this response than when I filed my original complaint," he said. "This is just bad [public relations]."
When someone files a complaint with a state agency, what he or she wants most is to be taken seriously, Culver said.
That is exactly what civilian review of law enforcement does, says Alberts. He said the ACLU has documentation that review boards reduce public reluctance to file complaints (by fostering confidence that people will get their day in court through the hearing process), and increase opportunities for reform efforts.
And while the ACLU's jury is out on civilian review of judges, "accountability is the bedrock of democratic principals," Alberts said. "Those who argue against civilian review argue against our own foundation of government."
New Times staff writer Tracy Idell Hamilton could probably use some more civilian oversight.