Is the new open meeting rule…… open?

Posted on November 19, 2013

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“I believe in absolute transparency.” *

—Chief Justice Tani Cantil-Sakauye, interview with Courthouse News Service, March 22, 2011.

As most of you know, the members of the Judicial Council are appointed by the Chief Justice, and the Council meets several times a year. These meetings, at which the Council ratifies decisions which affect us profoundly, are public. They are also largely ceremonial. Almost invariably, the public votes are unanimous; a survey of the Council’s record for a ten-year period uncovered only six non-unanimous votes. It’s not a stretch to conclude that at these public meetings, the Council merely rubber-stamps decisions that have already been made behind the scenes.

For over 15 years, the real decisions have been made by AOC staff and the five internal committees of the Council, long before the public Council meetings. Those internal committees — Executive and Planning, Rules and Projects, Policy Coordination and Liaison, Litigation Management, and Technology — are made up entirely of Judicial Council members picked by the Chief Justice. In addition to these powerful internal committees, there are myriad other advisory committees, working groups, and task forces — and the Chief Justice decides the membership of each of them.

All the meetings of these internal committees, advisory committees, task forces, and working groups are absolutely closed to judges, as well as members of the public.

In addition to the meetings of these advisory committees, every year there has traditionally been a meeting at which long-range plans for the branch are formulated. As with the other meetings, judges and justices cannot attend this branch planning meeting without an invitation. In fact, outside judges have never been allowed to see the agendas for the planning meetings, even after the fact. There hasn’t been a long-term planning meeting for the past two years, perhaps due to the disclosures of a now-fired whistleblower who revealed the exorbitant cost of the meetings, and to the exposure of the fact that the AOC paid a lot of money to outside “facilitators” who pushed an AOC-determined agenda at these meetings.

Since its inception, the Alliance of California Judges has fought to open these various meetings to judges and to the public. The Council and the AOC have fought us every step of the way. Last year, when the Executive and Planning Committee met to consider the matter of the SEC report, we asked that the meeting be opened. Judge Charles Wachob, chair of the SEC Committee, made the same request. The Executive and Planning Committee, then chaired by Justice Douglas Miller, denied the request, and the meeting stayed closed.

Despite persistent lobbying by the AOC and the Chief Justice, the California Legislature stepped in several months ago and passed a bill requiring the opening of many of these meetings. Unfortunately, the Governor vetoed the bill after the Chief Justice promised that a Rule of Court would be enacted “to ensure greater transparency.”

We doubt that a Rule of Court is needed. The Chief Justice can simply order that all these meetings be opened. The Chief Justice created the Technology Committee by fiat, not by rule. We assume that she could just as easily require its meetings to be open. Likewise, there is no current rule that requires that any meeting be closed; this is simply a practice that could be changed tomorrow.

Be that as it may, the promised rule now exists in draft form. According to an AOC press release dated November 14, it was written by Justice Miller, Justice Harry Hull, Judge Mary Ann O’Malley, Judge Ken So and Judge James Herman — names you are all probably familiar with. The draft rule and press release can be accessed here.

We wonder why the draft is so long and complex. The key part of the rule dealing with meetings of the full Council is brief and clear: the full Council must meet in open, public session except for discussions of personnel matters, labor negotiations, criminal allegations, land purchases, legislative negotiations, security issues, emergency situations, or matters involving the attorney-client privilege. (See California Rules of Court, Rule 10.6.) Why, then, should the rules dealing with subsets of the Council (the internal committees) and advisory committees (said by the AOC and Council to have no real authority in any event) be so cumbersome and include 17 separate, ill-defined exceptions to the presumption of openness?

The track record of the AOC and Council suggests that the intent may be to draft a rule that will allow the Council to keep these meetings closed. If the intent were otherwise, Rule 10.6 could simply be expanded to include all internal committees and other advisory bodies. No reason exists to treat these entities any differently than the full Council.

Another huge difficulty with the draft rule is that, as far as we can see, it makes no provision for the opening of the yearly, tri-annual, and other branch-wide planning sessions from which judges are now absolutely barred from attending, even though the result of these secret meetings is the periodic publishing of a six-year plan for the entire branch. Why have Justice Miller and the others so conspicuously omitted these crucial meetings?

Moreover, although we judges and justices are the people most immediately affected by the actions of these committees and task forces, we are lumped in with members of the general public when it comes to access. Apparently, there are the elite members of these committees, and then there are the rest of us. This attitude, so pointedly criticized in the SEC report, apparently still flourishes.

Finally, there is simply no enforcement mechanism.

Justice Miller has asked that members of the judiciary weigh in with their thoughts about the preliminary draft rule. After the judicial comment period, a final draft will be prepared and formally circulated for public comment. We urge you to send your comments, either by email to Justice Miller and the others at openmeetings@jud.ca.gov or by visiting the Council website comments section, accessible here.

The AOC press release indicates that the rule’s drafters will be speaking with “stakeholders” in the coming weeks to receive their input. We have asked to take part in that process on behalf of our 500 members. Nonetheless, we ask you to send your individual comments, just as you did to such powerful effect with the SEC report.

Whatever rule is eventually enacted will only work if the Council truly wants it to work. We have our doubts, and with good reason. Several years ago, the Legislature threatened to pass an analog to the Public Records Act aimed at the AOC and Council. The Council pleaded for a reprieve on the promise that they would enact their own rule. The reprieve was granted and we now have Rule 10.500. That rule, however — which has the force of law — is often ignored by those entrusted with the duty to enforce it. Sadly, that includes some now charged with the drafting and enactment of this new rule. If the Chief Justice really meant what she said when she promised transparency, she can simply order that the meetings be opened — or just extend the rule that governs the Council meetings to cover all the other meetings at which the real decisions are made.

We attach two recent articles dealing with the draft rule for your information.

Thank you,
Directors, Alliance of California Judges
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The Recorder
Council’s Draft Open-Meeting Rules Come With 17 Exemptions
Cheryl Miller

SACRAMENTO — Bowing to political pressure, the Judicial Council on Thursday unveiled draft rules of court that would declare its many policy committees and advisory panels “presumptively” open to the public.
But it’s unclear how significantly the eight-page proposal would change the judiciary’s current policy-making practices. The first draft includes 17 broad exemptions, including provisions allowing leaders to close meetings to consider legislative strategy, “raw” data and statistics, and matters “that will not be included in a report to the Judicial Council.”

“It’s a balance between transparency and opening meetings … [and] the unique aspects of how we do business,” said Justice Douglas Miller of the Fourth District Court of Appeal. Miller and four other council members wrote the draft rules after consulting privately with appointees serving on the council’s 30 advisory committees.
Miller and three of his council colleagues presented the proposal to gatherings of legislative staff at the state Capitol on Thursday.
Lawmakers earlier this year tried to force the judiciary to open its many committee meetings to the public by adding transparency requirements to budget language that boosted the branch’s revenues. But judicial leaders, including the chief justice, lobbied hard against the provision, arguing that the judiciary should be allowed to create its own open-meeting rules. The governor agreed, vetoing the Legislature’s transparency language and asking the judicial branch to voluntarily increase public access to its decision-making.

As drafted, the proposed rules would require each advisory committee to post a meeting agenda on the judicial branch’s website as well as an address, a telephone number or an online address that would allow the public to monitor the gathering. Public comments would be allowed and meeting minutes would be posted. Currently, council committees rarely announce publicly that they’re meeting—or even that they’ve met.

But many sessions would continue to shut out the public if the current range of exemptions is adopted. Three committees dealing with litigation and criminal and civil jury instructions would conduct all of their work behind closed doors. Miller said that, as judges, some of those committee members have unique ethical requirements that would bar them from discussing such matters publicly.

The 17 proposed exemptions applying to all committees go far beyond the exceptions found in state laws governing other state agencies, including the Ralph M. Brown Act and the Bagley-Keene Act. The council’s agenda-setting process, for instance, would remain off-limits to the public. So would discussions about selling property, such as a courthouse. And committee leaders who declare that planned conversations won’t lead to a future Judicial Council report can shut out the public, too.

Leaders say that provision would likely preclude the opening of many presiding judges’ committee meetings.

“There are a lot of questions to be asked about the words they used and the 17 exemptions,” said Tom Newton, executive director of the California Newspaper Publishers Association. “There’s virtually no remedy or process for people to complain” if a committee fails to abide by the rules, “and then there are a lot of exemptions that are either broad or not self-explanatory.”

A spokesman for Assembly Speaker John Perez, the main driver behind the failed open-meeting budget language, said it was too early to make any judgment on the proposal.

Miller called the proposed rules a “draft of a draft” that will be revised after lawmakers, labor and media groups weigh in over the coming weeks. “It’s something that we want to get right,” he said.

A final proposal is expected to be presented to the full Judicial Council in the spring.

Miller said the proposal will be presented to judges and court executives in regional meetings around the state in the coming days. Those meetings will be closed to the public.

Contact the reporter at cmiller@alm.com.
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Courthouse News Service
11/14/2013
Draft Rule Opening Council Committees Met With Caution

By MARIA DINZEO

SACRAMENTO (CN) – A long list of exceptions attached to a draft rule that would open Judicial Council committee meetings to the press and public was met with cautious criticism Thursday from reporters and newspaper advocates.

“This is really open to wide discretion by whoever is on the committee,” said Jim Ewert, General Counsel for the California Newspaper Publishers Association. “The exemptions they have created are very, very broad.”

Judicial Council committee chiefs, including Judge Kenneth So and Justice Douglas Miller, said the rule still needs a lot of work.

“We are going to take all the input, and in all likelihood will be narrowing some of these exemptions,” said So who heads the Public Coordination and Liaison Committee that advises on legislation.

“We’ve done a great job in creating a presumption of openness. We have to balance that with how we do business,” said Miller who heads the powerful Executive and Planning Committee that sets the agenda and the overall direction of the Judicial Council.

Steven Maviglio, spokesperson for Assembly Speaker John Perez, said the rule is still at a very early stage. “They’re just taking the first baby steps,” said Maviglio. “It’s very early in the game.”

The lengthy list of broad exemptions in the draft rule would allow committee chairs to close meetings when the subjects are security plans, raw data and statistics, the buying of property or legislative strategy.

The Judicial Council has a history of making decisions in closed-door committees followed by open Judicial Council sessions where the committee decisions are unanimously approved with little or no debate. Trial judges have said the council simply “rubber stamps” the decisions made secretly by the committees.

That manner of decision making drew the Legislature’s attention this summer when lawmakers included a clause in the 2013 budget mandating open meetings for all the council’s myriad advisory committees, sub-committees, working groups and task forces.

Governor Jerry Brown vetoed the clause after lobbying from Chief Justice Tani Cantil-Sakauye, who also said she was committed to opening as many committee meetings as possible. The Legislature then wrote language into a supplemental report requiring the Judicial Council to create more transparent meeting rules.
Pushing to comply with that language, the heads of the council’s big four internal committees — that set the council’s agenda, propose new court rules, oversee court technology and advise on legislation — presented the new rule at a press conference Thursday morning.

The press briefing took place in a pink-walled hearing room at the Capitol with the judges at a semi-circular desk facing theatre-style, red, cushioned seating where about 20 reporters asked questions, a far greater number than the one or two who attend Judicial Council meetings.

Justice Miller said he recognized the need for transparency when the courts are spending more than $3 billion in public money to run the courts system for the biggest state in the nation.

“It’s something we want to get right. It’s something we’re invested in and it’s important to the public,” Miller told the reporters. “If we are going to spend public money it should be in a public setting.”

He characterized the draft proposal as a big move towards transparency, but noted its rough nature and the need for refining the language, particularly for the exemptions.

“There may be some of these we understand,” said Miller, “but we need to put in simple plain English language.”
For California’s newspapers, their chief lobbyist said after the press conference that the proposal was in the overall a good move in the direction of open government.

“We just got it today and are still poring through it,” said Ewert. “My initial take is I think it’s interesting, and certainly not something they had to do, so to that end I think it’s a good thing.”

Ewert said he was concerned about the wording of the exemptions, some of which, like the exemption for discussion of draft reports and agenda setting, are broad and unclear.

“There may be certain circumstances where a draft report may not be in the public interest to disclose, but give it a standard,” he said. “This is really open to wide discretion by whoever is on the committee.”

Ewert also challenged the notion that discussions about raw data and statistics should be considered sensitive and therefore exempt from public view.
“Under the Public Records Act, even if that information is contained in a preliminary draft, courts have ruled that information can be extracted,” he said. “The analyses of that information, the thought processes of anyone who is preparing that information — those things are exempt, but not the raw information itself. Those are facts that are always going to be facts. This leaves me wondering what the need for that exemption is.”

Part of the difficulty faced by the Judicial Council relates to the enormous geography of California stretching 800 miles from the border with Mexico to the border with Oregon, an expanse that includes 58 separate regional courts including the behemoth of the south, Los Angeles, and tiny Modoc County in the far north.
Because of the distance and a lack of funds, nearly all the council’s advisory committees meet over the phone. The number of participants, generally judges and court administrators, can range into the hundreds.

“I was struck by was the idea that most of these meetings are conducted by teleconference and it’s going to be interesting to see how they’ll allow for public comment,” Ewert said. “What happens during the meeting? How they provide adequate public access to that going to be significant.”

In taking questions from reporters, the judges struggled to explain the exemption that would close the door when a committee discussed legislative strategy.
Historically, decisions on what legislation the Judicial Council will support have been made by its Policy Coordination and Liaison Committee, currently chaired by
Judge So from San Diego.

Those meetings have in the past been closed to the press.

One legendary controversy within California’s judiciary has been described as a sneak attack on local courts accomplished in the darkness of a closed legislative committee hearing. An administrative office official inserted language in a budget trailer bill would have stripped the power of local judges to choose their own presiding judge and head clerk, giving that power over to the Judicial Council which is strongly influenced by the administrative office.The move outraged trial court judges who revisited the issue for years as an example of overreach by the mandarins on high. Running through many of the comments on the incident was the idea such legislative language would never have survived an open committee process.

“There’s a misconception that the advisory committees are policy making committees,” said Miller in answer to that point. “They take their direction from the council and the council has to approve those in a public meeting.”

“There are proposed laws on a regular basis that have an impact on the judicial branch and the negotiations the process of coming up with a bill that the judicial branch feels is more appropriate are very sensitive,” Miller added. “If we had to hold those discussions in an open meeting there would be no point in negotiating. It’s not that we want to keep legislative discussions behind closed doors.”

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* Observation from JCW: Except on days ending with the letter “Y”

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