DAILY JOURNAL  •  Feb. 16, 2005
Judiciary Guards its Secrets
Lawmakers and lawyers protest closed policy and budget meetings
By Linda Rapattoni
Daily Journal Staff Writer         

        SACRAMENTO - First Amendment advocates, lobbyists and others in recent weeks have begun openly challenging the California judiciary's insistence on debating administrative, budget and policy issues in secret.
        The judiciary is the only branch of government not subject to open meeting laws.
        Many contend a new law requires the judiciary to be more transparent about its budget and policy setting. Legislators placed SCA1, also known as Proposition 59, on the ballot in November and it took effect immediately upon passage by voters.
        But court administrators have fought attempts to force judges to open these meetings, arguing that under the constitutional separation of powers, the Legislature cannot tell the courts how to conduct their business. They continue to hold meetings in which they discuss such procedures as how to structure their budgets and whether to amend standards for publication of appellate opinions.
        For example, about 100 judges and bar representatives have been invited to attend a meeting Thursday on a proposal to overhaul the state's court system, including lengthening judges' terms, cementing a stable funding source and clarifying the high court's authority over State Bar admissions and attorney discipline. The meeting is closed to everyone else.
        Open meeting laws such as the Ralph M. Brown Act, the Bagley-Keene Open Meeting Act and the Grunsky-Burton Open Meeting Act require state agencies to allow the public to attend meetings in which they set policy or discuss budget issues. The governor's cabinet meetings are private.
        Court administrators believe Proposition 59 preserved the status quo for the judiciary, reasoning that exceptions to open meeting requirements in existing statutes still apply to them.
        Nevertheless, they believe they are increasingly opening the judiciary to the public and were doing so before Proposition 59 was conceived.
        Spokesmen for unions and the bill's sponsors say there never was any question that the measure was intended to apply to that branch of government. Lawyers from the California Newspaper Publishers Association and the California First Amendment Coalition said the judiciary was often mentioned during the policy committee debates over SCA1.
        Peter Scheer, director of the California First Amendment Coalition, said he sees a clear line between purely judicial functions such as deliberating on cases and legislative functions such as policy-making.
        "A reasonable interpretation is where previously there was no access at all, now there has to be some reasonable access providing there is not a compelling reason not to provide that access," Scheer said.
        Access may mean allowing the public to sit quietly in meetings in which the judiciary discusses administrative or policy issues, or it may mean simply providing the public with records of the meetings later, he said.
        William Vickrey, the court's administrator, contends judicial committees and working groups only recommend policy, rather than decide it, and therefore their meetings should be private. He cites specific exceptions in open meeting laws for the judiciary. However, those exceptions do not distinguish between a policy meeting and a meeting to deliberate law.
        Scheer insisted the public should have access to the entire process because policy-makers eliminate some alternatives as they develop recommendations.
        "I think the judiciary should seize every opportunity it has to open its nonadjudicative deliberations to the public, because it doesn't have many opportunities to do so," he said.
        No one has challenged the law, but if someone did, the courts themselves would be in the awkward, but not unprecedented, position of being asked to decide if and how the law applies to them, Scheer said.
        Chief Justice Ronald George frequently and proudly touts the openness of California's judiciary under his tenure. For example, he has pointed to its award-winning Web site, where the public can find notices of Judicial Council meetings and agenda, as well as information about specific cases and opinions. He has pointed to the increasing use of cameras in courtrooms and the courts' outreach program that lets the public observe Supreme Court hearings held throughout the state.
        Michele Castro, a lobbyist for the Service Employees International Union, which represents several thousand court workers, is one of several people who have been frustrated by the judiciary's closed meetings. The union keeps close tabs on the judiciary's budget in preparation for contract talks for its workers.
        "We represent 600,000 people who work in California and are taxpayers," Castro said in a recent interview. "The judiciary doesn't have very good oversight and access. We need to know what the [courts'] budget is and is not. How can we responsibly tell people there's money or there is no money?"
        Castro's group was among the sponsors of 2003 legislation that would have required the judiciary to open meetings on budget and administrative matters.
        SB144, carried by Sen. Martha Escutia, D-Whittier, former chairwoman of the Senate and Assembly Judiciary committees, eventually ran into the separation-of-powers argument by lobbyists for the Judicial Council. When it finally passed, it required only that the Judicial Council adopt rules to require trial courts to give public notice and input to decisions regarding administrative and financial functions.
        Castro said that since Rule 6.620 took effect in January 2004, she has not seen any notices of budget-related meetings by local trial courts.
        Vickrey said no one has complained to him that local courts aren't complying with the rule, but that if they did he would follow up on it.
        Rule 6.620 does not require any meetings to be open to the public. It only requires the courts to give the public 15 days' notice and an opportunity to send correspondence electronically or by mail.
        "The Judicial Council lobbyists argued they didn't want public direct access to judges when making decisions because they didn't want it politicized," Castro said.
        Vickrey said the courts, unlike city councils and county boards of supervisors, have no taxing authority or the power to raise revenue and shouldn't be treated as political entities subject to the same level of openness.
        "I'm not in favor of turning the judicial meetings into city council meetings and politicizing the process," Vickrey said. "The court is like the Department of Social Services, which receives a budget sum and implements programs and regulations it is responsible for."
        Scheer said open meeting laws apply to taxing as well as nontaxing entities. He said if the judiciary opened more meetings, it would be a "long, long way" from becoming politicized.
        Vickrey acknowledged critics may have legitimate points that they should make to the Judicial Council.
        The budget process in the courts has varied. In small courts with just a couple of judges, a presiding judge or executive officer might propose a budget to the Judicial Council without discussing it with anyone. In larger courts, a small committee of judges may develop a proposal.
        Vickrey said that is partly why the Judicial Council voiced concern about Escutia's original bill. The law would have to be applied consistently and how, he asked, could it be applied in the case of the one judge proposing his court's budget?
        The courts provide notice of Judicial Council meetings in advance through a Web site that includes agendas, links to memoranda and a link to listen to the meetings in real time. Still, several lobbyists, journalists and advocates of open meetings said there is rarely any meaningful discussion of the items because most of it has already taken place in committee meetings, which are rarely open.
        Committee chairmen decide whether to open the meetings, said Lynn Holton, a spokesman for the courts' administration.
        Vickrey insisted proposals are publicly debated. He said proposals before the Judicial Council are sent out for public review and sometimes are sent back to a committee for amendment.
        "The council has tried to move forward with rules consistent with the spirit of general access to information and reports," Vickrey said. "We almost bury them with too much information in the process."
        The budget process is in flux this year because the Legislature decided to guarantee the judiciary a set amount of money to cover its basic needs with an annual adjustment for population and cost-of-living increases. So instead of having the local courts submit budget proposals, the Judicial Council is deciding on a method for dividing the budget pie.
        That method is being evaluated by the Trial Court Working Budget Group, said Tina Hansen, the finance director of the courts. She said the group would be seeking input from the local courts this month. But meetings of the group are closed.
        "They are internal management meetings," she said. "They talk about all policy issues."
        Vickrey said the judges and bar representatives meeting Thursday do not constitute an official body, lack decision-making power and so are not required to meet openly.
        Also frustrated by the judiciary's closed meetings are Alameda attorneys Kenneth Schmier and his brother, Michael Schmier.
        The Schmiers are well known in legal circles for doggedly fighting to change judicial policy to allow lawyers to cite all appellate court opinions in their legal briefs, not just the published ones.
        They pushed for a bill last year to let lawyers cite the unpublished opinions, but after the lawmaker carrying it met with Chief Justice George, a staunch opponent of the idea, the bill was dropped. Instead, the chief justice agreed to form a committee to study the standards used in publishing appellate opinions.
        The Supreme Court Advisory Committee on Rules for Publication of Court of Appeal Opinions has been meeting behind closed doors on the issue.
        Schmier said he believes Proposition 59 requires the courts to open the committee meetings to the public and said he is considering suing the court for allegedly violating the new law. He wrote last month to Supreme Court Justice Kathryn M. Werdegar, chairwoman of the committee, asking for calendars, agendas and the opportunity to participate.
        Responding to the letter, a court administrator wrote that the meetings are private. He said the committee would consider any material Schmier wished to present and planned to publicly circulate recommendations to the court.
        Werdegar declined a formal request by the California First Amendment Coalition to quietly sit in on the meetings, Scheer said.
        "They tell us we can submit information, but they won't tell us when the meetings are or when the materials are due," Ken Schmier complained. "We can't monitor the discussions and know if anyone has read the documents. We can't sense how deeply or sincerely an allegiance to any position is held. We can't assess whether the arguments they use are even true."
        He rejected the courts' separation-of-powers argument.
        "Separation of powers applies to judicial actions, it does not apply to the administration of the judicial branch, which is essentially an executive function," Schmier said.
        Vickrey said Supreme Court commissions are only advisory and implied they fall under the adjudication process that is protected from public disclosure by long-established statutes and case law.
        "It goes to the heart of their deliberations in arriving at decisions on what to publish and when to publish," Vickrey said.
        James Chadwick, a Palo Alto lawyer with DLA Piper Rudnick Gray Cary, represents the First Amendment Coalition and helped write Proposition 59. He said it cannot be read to allow the public to attend every meeting involving public officials, such as when two state officials sit down to meet.
        "But when you constitute a formal body and invest it with the authority to formulate a policy and invest it with rules, then I think Proposition 59 does apply," Chadwick said.
        Terry Francke, a First Amendment lawyer with Californians Aware, a group supporting open government and free speech, pointed to a provision in Proposition 59 that states the measure must be broadly construed to allow public access.
        "I'm not quite clear how that operates on, for example, a rule of the Judicial Council that says standing committees shall be open at the discretion of the chief justice," Francke said.
        "What I understand are meetings of public bodies are those such as the Judicial Council, the other defined policy-making bodies for executives of the court system and perhaps meetings of local executive committees ... or governing committees ... of the superior courts," Francke said. "They are rule-making bodies as opposed to court proceedings."
        Francke said if a policy committee convened after Nov. 2 and limited right of access, Proposition 59 requires it to adopt findings "demonstrating the interest protected by the limitation and the need for protecting that interest."
        Vickrey said Proposition 59 applies only to rules adopted after the initiative became law.
        "We haven't adopted any rules of limited access," Vickrey said.
        He could not yet say whether the judiciary believes it is required to adopt the findings as stated in Proposition 59.
        Willie Pelote Sr., who lobbied for the Escutia bill on behalf of the American Federation of State, County & Municipal Workers, said the Legislature debates all proposed laws in public at policy committees.
        "In the judiciary, all of that [policy-making] seems to be in the hands of the presiding judge," Pelote said. "They form their own committees and close them off to the public. When dealing with budgeting and administrative things, the public should be able to weigh in."
        Castro said the issue comes down to accountability.
        "At the end of the day these are public tax dollars," she said. "We don't think this branch of government should be exempt from the checks and balances that apply to every other branch of government, especially at a time when they are going to get a whole lot more money."