Battle of Information in Judiciary
(CN) - A new controversy has erupted within California's judiciary over a judge's question on whether the administrative bureaucracy is planning to pay expenses for judges attending a judicial conference that has become an important political venue.
Retired Los Angeles Judge Charles Horan made the following email request for information from the Administrative Office of the Courts: "I have been told that the AOC will reimburse for up to $300 for appellate justices to attend the next CJA conference. Is that true?"
Horan also asked if the same applied for trial judges and who had authorized the payments.
The California Judges Association is the oldest and biggest of California's judge associations. Its annual conference has become a front in the larger conflict over the bureaucracy's effort to exert central control over the policy, operations and financing of local trial courts.
So a move by the bureaucracy to pay certain judges for attending could be seen through a skeptical lens as an effort to influence the proceedings.
While on its face a simple question, Horan's request was quickly forwarded by administrative office employee Chad Finke to Appellate Justice Harry Hull who has a policy of requiring that all requests for information by submitted through the U.S. Post Office.
"The AOC is funneling all the problem children over to Justice Harry Hull," said Horan in an interview. "When they stand up and ask for peace in the valley and say we should turn the page, they should look in the mirror and ask themselves why they are playing these games."
The administrative office argued that the requests for information are time consuming and require research.
Horan answered, "Ninety percent of the work generated by information requests results from the gymnastic contortions the AOC and some Council members put themselves through trying to avoid answering simple questions."
Hull said his policy requiring that questions be asked by letter sent through the hand-carried mail is necessary to provide accountability.
"For certain requests, I have insisted that the requesting judge make the request to me by standard mail over the judge's signature rather than by e-mail for purposes of accountability and to avoid a later claim that the judge did not make the request," he wrote in an email.
"I base this in part on 40 years of practice in both criminal and civil litigation," he added. "It 'makes the record' and leaves no room for claims of tampering with the message or false authorship which e-mail allows for. With his or her signature, the judge owns the letter and the message and cannot later claim to the contrary."
In a letter to Chief Justice Tani Cantil-Sakauye, Horan addressed that point.
"We all know, or should by now, that email provides an everlasting and wholly accurate record for both sender and recipient," he wrote. "U.S. mail is slow, and provides no verifiable record at all. Justice Hull's only stated reason for insisting on U.S. mail is not grounded in this reality, and his practice is apparently due to something else altogether."
The letter argues that the administrative office and the Judicial Council that operates under the chief justice are singling out judges who belong to the Alliance of California Judges for special treatment. The alliance has campaigned to reform the practices of the administrative office, and regularly blasts what they describe as the insularity, arrogance and free-spending ways of the bureaucrats.
A spokesman for the central administrative office said, "We have to get better about answering information requests. The council has to create a policy on it and they haven't."
"I have heard they ask some good questions, but they are not easy to answer," said the spokesman who asked not to be identified.
In his letter to the chief justice, Horan noted that administrator Finke had been helpful in the past, but is now referring to Justice Hull all questions from Horan, a former director with the alliance, as well as requests from current directors of the reformist alliance.
"I do not imagine that Mr. Finke has taken it upon himself to unilaterally change AOC policy -- or his own formerly well-documented and normally cooperative practices -- toward only certain judges," wrote Horan. "I imagine Mr. Finke is simply following orders. I mention this instance only to show you how petty and ridiculous the situation has become."
He pointed out that Finke has refused to give the names of employees who had been promoted at the central office. The list of those promoted would give a strong clue as to the office's direction, whether it is committed to reform or seeking to keep in place its old and often controversial policies.
"Mr. Finke refuses to divulge their names, claiming that this is personal, private information," wrote Horan. "In contrast to his denial of my request, recently the AOC obligingly released a list of roughly 100 AOC telecommuting employees to the press - all employees identified by name."
A number of personnel practices were criticized in a recent massive report by a committee of judges who proposed more than 100 reforms to the administrative office. The report highlighted the practice of allowing many highly-paid employees to telecommute, or work from home, one of them from Switzerland.
"It is obvious that Justice Hull has been personally assigned to me, and to the current directors of the Alliance of California Judges, regardless of the nature of the request, and regardless of who might actually have the information to answer it," wrote Horan. "It appears to me and others that a high-level decision has been made to make life difficult for anyone affiliated with the Alliance of California Judges when it comes to these requests."
Justice Hull wrote in an email that the Judicial Council is currently working on amending its method of handling records requests.
"This has become necessary because of the nature of certain requests that the AOC has been receiving over the past year or two," wrote Hull. "That is, many requests from judges are for records, which requests are processed as any other request for records."
"However, many requests the AOC has received lately are not for records but are for 'explanations' or simply 'information,' that is, not records requests at all."
He said that between 300 and 400 hours of administrative office time had been spent on requests for information since June 1.
"We are trying to clarify the manner in which the AOC handles these requests and that it do so under the auspices of the Judicial Council," wrote Hull.
Underlying the debate over requests for information is a dispute over interpretation of court rule 10.500 that calls for open access to information in many areas of court operations.
The lengthy and detailed rule states in the intent portion that it "clarifies and expands the public's right of access to judicial administrative records and must be broadly construed to further the public's right of access."
"The rule itself requires that it be broadly interpreted," noted Horan over the phone. "Rule 10.500 is based upon a California constitutional right of access. It's more than just a rule of court we're dealing with. They're really under a duty to protect the constitutional rights of all citizens, including judges and not stand in the way of their exercising those rights."
"It's not like these records belong to them, they belong to the public. The rule is there and it should be interpreted reasonably," Horan added. "I guess they are very upset with the manner in which we deal with the information we're given. We make that information public."
In his email, Hull said most of the requests he receives from judges are reasonable.
"Unfortunately, many that are received from Alliance members who have identified themselves as such are not reasonable (such as, why is the Administrative Director of the Courts is referred to as a member of the Judicial Council or why was a judge not given information at the same time it was given to the press or who was it at the AOC that actually authored an e-mail) and are, in my view, more intended to be intimidating and to provide make-work for AOC employees rather than legitimate requests for information," Hull wrote.
In his letter, Horan said he has offered to work out some reasonable solution. "I am fairly confident that any difficulties that exist vis-a-vis information requests can be worked out if good judgment prevails over emotion."
But, he said, he has not yet received a response.
Hull said a committee is looking into the matter, and any judge is welcome to offer input on how the administrative office should deal with records requests, adding, "We hope to get something to the Council in December."