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Courts Governed Largely Behind Closed Doors

Courts Governed Largely Behind Closed Doors

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Published by Terry Francke
News story from The Recorder
News story from The Recorder

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Categories:Types, Business/Law
Published by: Terry Francke on Feb 27, 2013
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02/27/2013

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The Recorder Cheryl Miller 2013-02-22
"The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of publicofficials and agencies shall be open to public scrutiny." 
— California Constitution,Article 1, §3 (b)(1)For decades, California's courts have upheld, even championed, laws granting the publicopen access to government meetings.They've enforced strict boundaries on what elected officials can discuss in closed session,chastising one city for using open meeting exemptions "as a shield against publicdisclosure of its consideration of important public policy issues."
Shapiro v. City Council of San Diego
, 96 Cal.App.4th 9904 (2002).They've ordered agencies to provide the public with accurate agenda descriptions of whatthey plan to do in session — and then stick to them.
Carlson v. Paradise Unified School  District 
, 18 Cal.App.3d 196 (1979).And they've deemed public access to government information a check "against thearbitrary exercise of official power and secrecy in the political process."
CBS v. Block 
, 42Cal.3d 646 (1979).But when it comes to running their own governmental house, judicial leaders have takena more do-as-I-say, not-as-I-do approach.The Judicial Council meets regularly in closed session, each time citing an expansiveRule of Courtthat gives the chief justice broad authority to shut out the public.Sometimes a vague reason is given for the closed session — "privileged attorney-clientdiscussions," for example. Many times, however, the meeting is simply listed as a"nonbusiness meeting" and closed. There guidelines for when a meeting can be closed arevague and rarely does the council report any action taken in such meetings.While the council circulates agendas prior to its meetings, the five so-called internalcommittees that perform much of the planning and policy shaping for the branch do not.Brief minutes of these committees' meetings are usually included in the Judicial Councilagendas, but often not until months after the gatherings occurred.The council'sDec. 14, 2012, information packet, for example, included minutes for anAug. 12, 2012, meeting of the Policy Coordination and Liaison Committee. The summarynoted that the committee had opposed a pending bill dealing with bail procedures for felony suspects. But it offered no record of committee members' votes and no reasoning
 
 behind the committee's stance. And by the time a report of the committee's action wasmade publicly available, the bill had already died in the Legislature more than twomonths earlier.The workings of the council's more than three dozen advisory panels, task forces,working groups and subcommittees are even more secretive. No agendas or minutes for their meetings are posted publicly. Instead, the administrative director of the courts offersin his regular reports to the council two- or three-sentence reviews of their recentgatherings.Chief Justice Tani Cantil-Sakauye said the council hasn't considered whether the branchshould be doing so much work in private because "no one's really asked."Opening committee meetings "is probably a good idea to consider," so long as it doesn't"chill" discussions or generate new costs, she said."Maybe it would serve to educate people about what the Judicial Council does and howthe Administrative Office of the Courts is different from the Judicial Council," Cantil-Sakauye added. But she and other branch leaders still contend that the public is missingnothing in these shuttered committee meetings since the Judicial Council meets openly tomake the final decisions on court rules and branch policies."That's the same argument you hear with committees under the Brown Act," said MaryDuffy Carolan, a Davis Wright Tremaine partner who has represented numerous newsorganizations. The Brown Act is the California statute governing access to legislative- body meetings."A lot of deliberations up to decision making happen in committees," Carolan said. "It'simportant for the public to see that in process so they can be fully informed at the time adecision is actually made." No one has accused any of the committees of wrongdoing. In fact, Third District Court of Appeal Justice Harry Hull Jr. said he's never even been approached about opening hisRules and Projects Committee meetings to the public. (Rule of Court 10.10 says internalcommittee meetings are closed to the public unless a chairperson decides to openthem.) "For most people who are not involved in these issues, they'd probably be boredto tears" by these committee hearings, Hull said.But the branch does have a recent history of being hurt politically and financially by not being more open about its work. In a February2011 report, state auditor Elaine Howlespecifically cited a lack of transparency in planning and decision making as a primereason projected costs for the now-defunct Court Case Management System skyrocketedto an untenable $1.9 billion.Last November the Legislative Analyst's Office alsoconcludedthat the branch may haveoverpaid by as much as $160 million for a new Long Beach courthouse under a
 
controversial 2010 public-private partnership deal crafted largely in private by judiciaryofficials, the governor's office and a handful of lawmakers.Cantil-Sakauye has made the call for greater branch transparency a main theme of her two-year tenure as leader of California's judiciary. She and the council did end her  predecessor's practice of holding closed-door "educational" meetings of the JudicialCouncil the day before the council's public gatherings."The council doesn't have closed sessions talking about issues coming before it, talkingabout how we're going to vote," said Fourth District Justice Douglas Miller, who chairsthe Executive and Planning Committee, which sets the council agenda."The council has substantially reduced the number of closed sessions over the last twoyears," Miller said.But members still met privately for almost 14 hours through various meetings in 2012,according to council agendas and minutes. And even some participants privately questionwhy.One former Judicial Council member recalled closed-door discussions about personnelissues, a subject that open-meeting laws affecting legislative agencies typically allow to be considered in private. But some topics, the member said, focused on "nonpersonnel but sensitive" issues including "political strategy" that didn't seem to warrant the hush-hush treatment.Rule of Court 10.6 allows the chief justice to close a meeting for a host of reasons, fromdiscussion of litigation and land deals to consideration of "legislative negotiations."A past advisory committee member, who asked for anonymity because he has proposalsthat may go before the council, said he, too, was perplexed as to why the public would beshut out of his panel's meetings. Debate could be intense at times, he said, but probablywouldn't have been affected by an audience."I don't think there's anything secret or confidential going on," he said. "They were just policy issues."But the sheer breadth of policy issues studied and debated by thoseadvisory committeesand task forcesis enormous. They have considered changes to the death penalty appeals process, testing rules for court interpreters, budget allocations for trial courts andconstruction priorities — mostly in private.Some committees have occasionally opened their doors. Panels dealing with family law,courthouse construction, conservatorships and foster care have held public meetings inrecent years. But they're the exception to the rule.

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