Open Committee Rule Passed by Judicial Council With Reluctance

     SAN FRANCISCO (CN) - Under pressure from the California Legislature, the Judicial Council unanimously passed an open meetings rule Thursday that would open up many historically closed committee meetings. But the overall balance of the rule still favors closed committee doors, said press and open government advocates.
     "We started this effort at the urging of the Legislature and the governor's office last summer," said Justice Harry Hull, who helped draft the rule. "As we talked, I was persuaded a broader rule would benefit the branch."
     Other council members were not so persuaded and voted "aye" with great reluctance.
     Brian Walsh, the presiding judge in San Jose, said he was "all for openness" but the council was already open enough. His comments also acknowledged what has been an open secret for years, that the advisory committees are heavily influenced by staff from the Administrative Office of the Courts.
     "They consist of staff and essentially user groups, not Judicial Council members, who then work up issues to present essentially as staff reports to the voting body," said Walsh. "To require opening up such staff functions, I believe is inappropriate."
     He said he only voted in favor of the rule "not because it is necessary for appropriate democratic transparency -- we already have that -- but because if we don't pass this rule, those in Sacramento who continue to misunderstand how our branch functions will impose something even more inappropriate."
     A catch-all justification for continuing to close meetings has been that open discussion might compromise a judge's ethics. But that justification was rejected by the former head of the ethics committee for the California Judges Association
     "I know of no discipline ever imposed upon a judge who has made public commentary about a pending or impending case within the context of a governmental or judicial advisory body," said Judge Julie Conger who has taught ethics to judges since 1990 and twice chaired the ethics committee for the California Judges Association.
     Open government advocates said the rule passed on Thursday fell short of what the Legislature intended and what is needed to bring sunshine into the decisions that affect the courts and the people of California.
     "Like with any bureaucracy, the public is entitled to know what's going on and the more that the bureaucracy reveals to the public, the greater will be the public's trust in the court system," said Peter Scheer, executive director of the First Amendment Coalition. "These rules gives them excessive discretion to avoid transparency by going into executive session for all sorts of reasons."
     The muscle behind the push for the rule came from legislators who included a mandate to open the council's myriad committees in a trailer bill attached to the 2013 budget. Governor Jerry Brown vetoed the bill after lobbying from Chief Justice Tani Cantil-Sakauye, who argued that the judiciary should be allowed to write its own rule.
     The chief justice then appointed the heads of the Judicial Council's five most powerful committees, the internal committees, to draft it.
     "I knew three years ago we talked about opening meetings, but we never quite finished that conversation because we were hit with so many financial crisis. We just never got around to it," said Cantil-Sakauye during Thursday's council meeting. "As for all the comments today I agree with all them. Every single one of them."
     
     Public Comments
     Referring to a very different set of comments, the chief justice noted that the public and press had ample opportunity to give input on the rule. "We are gluttons for punishment," she said. "We went through two rounds of public comment."
     Public comments were submitted by the California Newspaper Publishers Association, by Courthouse News Service, the Service Employees International Union, Assembly Speaker John Perez and Assembly members Bob Wieckowsi and Reginald Jones-Sawyer.
     In a nutshell, they said the open committee rule was out of step with California's sunshine laws, included too many exemptions and left key committees closed.
     The CNPA and Courthouse News specifically argued that the rule-making committees should not be held in secret and there was no reason to close committees where draft reports and initial data gathering were discussed.
     The SEIU also observed that the public can understand the difference between draft and final reports, and that public comment obviously has more influence before a report or recommendation is final.
     Those arguments were successful. The final version of the rule opens the doors to the Rules and Projects Committee and to discussions about draft reports and "unverified data."
     But the committee chairs also gave themselves an escape hatch, calling for a review of the rule after one year. "We will review the rule in its actual working, and if in practice the rule has gone too far we will amend its provision," Hull said.
     Attorney Katherine Keating with Bryan Cave in San Francisco said the comments of the press and were clearly considered in the report to the Judicial Council by the rule's authors. But, she said, the rule still carries a presumption against transparency.
     "The authors of this report spent a lot of time and worked very carefully through all the comments that were submitted," said Keating. "The chart summarizing comments and responding to them is often detailed and careful." Keating's firm submitted public comments on behalf of Courthouse News.
     But the rule does not follow the legislative mandate set out in the Legislative Analyst's Office report on the budget, said Keating. That report, published last summer, gave a broad instruction to open council committees.
     "The report asks for a rule that would apply to various bodies that review issues and report to the Judicial Council," said Keating. "Instead, the rule says if a particular body happens to be working on something they report to the Judicial Council on, then they have to be open. It is significantly narrower -- to say that a body that reviews issues has to have open meetings versus only when it reports to the Judicial Council."
     A similar method was criticized by press advocates as a "definitional sleight of hand" in efiling rules passed by the council last year. Those rules attempt to restrict and delay access to court documents by interpreting the Legislature's broad grant of public access to official records such as those put in a file to say that a record must be put in a file to be public. The rules then make another leap to say efiled documents must be processed, as though put in a file, to become public.
     Referring to the 200-page report from council committee chairs that accompanied the open committee rule, Keating said, "The chairs of this report were fairly frank in saying that the public has enough access and they don't need any more. Based on the comments that were submitted, most members of the media and government access advocates would disagree."
     "Most open government and media representatives would say the presumption should be on openness, and where there is a really good reason to have something closed, then you close that," she concluded. "Even with the few revisions that were made to the rule, it's still the other way around."
     
     Question of Ethics
     
The principal argument against opening the committee has been "ethics," the suggestion that opening up policy discussions to the press might compromise a judge's ability to fairly judge cases.
     In his comments before Thursday's council vote, Justice Hull argued that the committees rely on voluntary participation from judges. "If due to a concern that participation calls upon a judicial officer to violate the canon of ethics, that participation would be seriously diminished and the work of the branch would be severely compromised. The rule that has that effect has gone too far."
     But Scheer was not buying it.
     "We're talking about a judiciary in California that has its own lobbyist. If the judiciary as an institution in California doesn't mind having a lobbyist who tries to influence votes in political process, then I really don't' see how they can complain that they'll be compromised somehow when they talk about public policy," Scheer said.
     Scheer and Keating, both lawyers, said they would like to see some examples.
     "I would really have liked to have seen a more detailed explanation of why that's true. It feels a little bit like we've got to take their word for it," Keating said. "The canons of judicial ethics don't give judges more latitude to make comments in private than in public. The restrictions apply whether they're made in public or not."
     "I've heard the argument again and again and I think it's greatly misconceived," Scheer said. "I've never heard of an example where a judge on an advisory committee to the Judicial Council might be called upon to say something or comment on something that would somehow infringe on or would be questionable under the rules of ethics governing judges, or would give the appearance of a conflict of interest."
     Judge Conger, who has taught ethics to judges from nearly a quarter-century said she has never heard of an instance where judges have been disciplined for violating the judicial ethical canon based on comments made in advisory committee meetings.
     "If, perchance, the topic of a pending case arises within the deliberations and discussions of an advisory committee, and the facts and substance of the case are relevant and essential to the proceedings, it strikes me that the Committee could adjourn to executive session to discuss the matter."
     Conger added, "The Council report envisions judicial commentary on 'active cases, non-final decisions, or opposing interpretations of statute or case law' as being chilled by opening the advisory committees to the public -- again, I know of no discipline imposed on a judge who made public comments about pending cases within the context of serving on an advisory committee."
     Though retired, Conger still sits on the bench in Alameda County as an assigned judge, and must still abide by the ethical canon. That includes her work on the California Commission on Aging which requires open meetings under the Bagley-Keene Act.
     "We frequently discuss Elder Justice cases which come before the courts; I find no difficulty in discussing the legal issues involved in these cases within the context of a public meeting as long as I avoid specifics of the cases, committing myself to reaching a particular ruling, and appearing to exhibit bias or prejudice," she said.
     During Thursday's council meeting, Justice Douglas Miller, chair of the council's internal Executive & Planning Committee and one of the rule's authors, called the rule a work in progress."The rule represents a change for the judicial branch. We the Judicial Council and staff will likely be challenged by the demands of the new rule," he said. "But I sincerely think it is the right and appropriate thing to do."
     Chief Justice Cantil-Sakauye said she shared the council's concerns, but supported the rule's passage. "It's not going to be perfect in anyone's view," she said. "But it's a step in the right direction. I have no predictions in how this well go -- I'm a little worried about it myself. But it's conceptually something to be proud of."