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By Malcolm Maclachlan | 04/08/10 12:00 AM PST

State Auditor Elaine Howell and the Judicial Council of California continue to battle over her request for a wide range of documents she said she needs to conduct a legislatively-mandated audit of family courts.

The two offices have been in contact since last July, when the Joint Legislative Audit Committee (JLAC) unanimously approved a request to audit the family courts in Marin and Sacramento Counties. The audit was requested by Sen. Mark Leno, D-San Francisco, after numerous allegations of conflict of interests and other problems in those jurisdictions.

This correspondence became an open dispute last month, when the Bureau of State Audits threatened to subpoena documents it says it needs to complete the audit. This came in a March 18 letter from Sharon Reilly, chief legal counsel for the auditor’s office, who gave the Judicial Council a deadline of Monday, April 5.

The reply did come by the deadline. But the response from Mary Roberts, general counsel for the Judicial Council, continued to challenge many of the auditor’s requests. Roberts letter contends that the auditor is asking for “confidential/sealed documents” such as “criminal history reports, fee waivers, psychological reports” and similar documents.

“To be clear, the courts are not opposed to providing the bureau access to all individuals and records ‘necessary for the completion of this audit.’ Moreover, the courts have never opposed such access,” Roberts wrote, but said that they “must first give reasonable notice to the parties involved.”

“We’re trying to work it out with the auditor how much they åreally need,” said Judicial Council spokesman Philip Carrizosa.

According to Sacramento Superior Court Judge Eugene Balonon, who oversaw the Sacramento family courts for all ofå 2009 as part of a standard judicial rotation, notification would not be a very labor intensive process. The auditor would only be reviewing a sample set of cases, and it would merely be a matter of using an automated system to send out form letters to the people involved.

This notification, however, does raise the possibility that some people would object to their information being shared—and might attempt to take legal action to prevent it.
“That would be up to them,” Balonon said. “We’ve not going to give them any legal advice. All we want to do is make sure people know their confidential records are being accessed, and not by a judge. Our own court staff cannot even look at those documents.”

According to Roberts letter, the Judicial Council and the Auditor’s office have been arguing since at least November whether these kinds of documents were even necessary for the audit.

She continued, “None of these documents appears necessary or relevant to the completion of the audit inasmuch as they are in no way related to the process the court uses for court appointments.”

These “court appointments” are at the heart of the original audit request. The audit effort was pushed by a Marin-based group called the Center for Judicial Excellence (CJE). Their critique of the family courts claims that judges, attorneys and court-mandated specialists such as child psychologists have become overly friendly in these counties and a few others—with high-priced, court-mandated evaluation contracts being given favored to people. The CJE has also alleged that the high cost of these specialists and other aspects of family courts favor more well-off litigants.

Kathleen Russell, a consultant with the CJE, said the documents the Judicial Council is arguing are unnecessary could be very relevant in proving these allegations. She also noted that no confidential information would be in the auditor’s report.

“Innocent children’s health and safety is at stake here, and nine months later, the AOC [Administrative Office of the Courts, which oversees the Judicial Council] is still dragging its feet,” said Russell. “The California Judiciary has operated in the dark for decades, so the notion of transparency is pretty new to them. We applaud the auditor for not backing down from the courts’ stonewalling.”

According to Howle’s office, they’re still determining their next move. Leno said that he and the auditor do want to protect confidential litigant information, especially related to cases that are still open. But Leno also said that Judicial Council letter acknowledged the broad powers that auditor has to require disclosure.

“At this point we just have to be patient and await the determination of the auditor and her legal counsel,” Leno said. “The audit will be conducted, and on the terms of the auditor.”
The Auditor’s office is also set to begin another audit involving the courts this month. On Feb. 18, JLAC approved a request to audit the California Case Management System. CCMS, as it is known, is a new computer system designed to track court records. Its goal is to standardize court records while protecting confidential data and streamlining record retrieval.
The original price estimate for the system was $260 million back in 2004. But CCMS’s cost has skyrocketed, to $1.7 billion. The State’s Chief Information Officer, Teri Takai, has also conducted an audit on the system. Those results are due within the next two weeks.

At their April 23rd meeting, the Judicial Council will also hear results from yet another look into the court system. The Elkins Family Law Task Force will present findings of review of family courts that began when they were seated back in May 2008 to “conduct a comprehensive review of family law proceedings,” according to the Judicial Council website.

The Task Force has gathered testimony on problems with the family courts at numerous meetings around the state. It has also become a focal point for many groups that have been critical of the family courts in California, often pitting organizations representing battered women against father’s rights groups.

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