Leak on justice remains a mystery

by Kathleen O. Beitiks

The source of a news leak surrounding the confirmation of Supreme Court Justice Janice Rogers Brown remains a mystery despite a three-month investigation by a special State Bar-appointed panel.

State Bar President Jim Towery released the results of the investigation last month, saying it was "a thankless task" on the part of the panel and that members were "exceedingly thorough" in their work. However, the group was unable to pinpoint the source of the leak or otherwise assess accountability.

Towery appointed the panel after the Los Angeles Times revealed confidential details of the "not qualified" rating of Justice Brown by the Commission on Judicial Nominees Evaluation (JNE).

When requested to reveal the source of its information, the Times declined, citing protection under California's "shield law."

In its final report, the special panel also recommended that no action be taken against JNE Chairwoman Rita Gunasekaran. At Justice Brown's May 2 Supreme Court confirmation hearing, Gunasekaran disclosed that Brown was rated "not qualified" when she was previously considered for the state's top judicial post.

Despite the unfavorable rating, Brown's nomination to the Supreme Court was confirmed unanimously by the Commission on Judicial Appointments.

Gunasekaran was questioned about JNE's positive evaluation of Brown before her appointment to the Third District Court of Appeal and revealed during her testimony that Brown had received a "not qualified" rating when she was considered for an earlier Supreme Court appointment.

The bar panel concluded that Gunasekaran's revelation came while she was answering the confirmation committee's questions during a fast-paced, extemporaneous exchange. While the disclosure should have been avoided, said the report, it was apparent that Gunasekaran's only motive was to fulfill her obligations as chair of JNE.

Gunasekaran, a partner in the Santa Monica firm of Haight Brown & Bonesteel, claimed she had reviewed the statutes pertaining to JNE prior to her testimony before the confirmation committee to determine her latitude as chair of the commission.

She said she was "delighted" that the panel cleared JNE members and added, "It was unthinkable to me that any one of those individuals would have been the source of the leak."

The 27-member JNE Commission is directed with the task of investigating the governor's nominees for judicial posts. By statute, the work of the commission is confidential. Towery said there have been "a handful" of leaks in JNE's 16-year history, but that the recent leak was the only one made public.

Panel members were retired California Court of Appeal Justice Harry W. Low of San Francisco, San Mateo County District Attorney James P. Fox and Fresno County Municipal Court Judge Robert H. Oliver.

Towery said the panel interviewed 63 individuals during the course of the investigation, including all members of the JNE Commission, some former JNE members, State Bar personnel, print shop employees and others who may have had access to JNE findings.

When asked about the dead-end results of the investigation, Towery said, "If you look at the history of chasing leaks on the federal level or whatever, they are notoriously unproductive. If people wish to say it doesn't answer the question, that's certainly their prerogative. I'm confident the JNE committee did its job."

Among other things, the report recommends that:

• No draft reports should be sent to the governor -- only final reports.
• Final reports should be sent to the governor only and not to JNE members.
• Precise standards for evaluation of judicial candidates should be developed.
• More precise standards for what JNE considers to be distinguishing characteristics between the various ratings for nominees need to be developed.
• The role of the JNE report during judicial confirmation hearings needs to be defined.
• The relevance, if any, of prior candidate ratings should be determined and time limitations developed beyond which prior evaluations become stale and lose their relevance.

The Justice Brown controversy also resulted in the appointment of a seven-member committee to evaluate the rules and procedures of the JNE Commission. Headed by Fourth District Court of Appeal Justice James Ward, the committee met for the first time last month in San Francisco.

Towery said he would pass on the investigatory panel's recommendations to Ward's committee, adding that he personally would like to see "more openness" in the JNE process.