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
- 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
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.
believe Proposition 59 preserved the status quo for the judiciary,
reasoning that exceptions to open meeting requirements in existing
statutes still apply to them.
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.
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
critics may have legitimate points that they should make to the
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
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.
decide whether to open the meetings, said Lynn Holton, a spokesman for
the courts' administration.
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
"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
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,"
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
"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
Proposition 59 applies only to rules adopted after the initiative
"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."