SAN FRANCISCO (CN) - Comments last week from judges, labor representatives and open government advocates poured criticism on the "vagueness and breadth" of exemptions to a draft rule that would open up meetings of Judicial Council advisory bodies.
But, when asked if the draft rule applies to the Judicial Council's powerful internal committees, Justice Douglas Miller who heads the Executive and Planning Committee answered directly and clearly, "Yes it does."
"We used the legislative language to guide our definition of an advisory body to the Judicial Council," he added. That legislative language defines advisory body as "any multimember body created by formal Judicial Council action to review issues that will be reported to the council."
But criticism rained down on the draft rule's many exemptions that would allow advisory bodies to continue operating in the dark.
"The draft rule's 17 exemptions threaten to swallow the rule," said the Alliance of California Judges in its comments.
"The draft allows closed sessions when committees discuss 'legislative strategy or negotiations.' The desire to formulate legislative strategy in secret is alarming," the Alliance commented. "In the past, branch leaders have taken positions on legislation that were diametrically opposed to the interests and the wishes of many of the judges."
Some of the subjects that would allow the committee chairs to close their doors are: security plans, personnel matters, raw data and statistics, buying property, legislative strategy, agenda setting and anything falling under attorney-client privilege.
In unveiling the rule earlier this month, the heads of the internal committees described it as a rough draft that still needs a lot of work and is likely to wind up with narrower exemptions.
In a press briefing, Miller repeatedly said the open committee rule "is something we want to get right." He also argued that the many judiciary committees merely advise the Judicial Council and "do not set policy."
That view was flatly contradicted by the reformist Alliance of judges.
"The Judicial Council's five internal committees and associated advisory committees wield much of the real decision-making power within the Branch," said the Alliance judges. "The Judicial Council itself has devolved into a largely ceremonial institution. Over one ten-year stretch, its members failed to vote unanimously only six times. All too often, the Judicial Council merely rubber-stamps decisions made behind the scenes by the five powerful internal committees."
Reporting regularly on Judicial Council meetings reveals a pattern where proposals coming out of the committees are generally ratified with perfunctory debate and without substantial opposition. Monthly reports from the internal committees to the council are generally vague, particularly so with reports from the Technology Committee.
The leaders of the Technology Committee and its underlying task force, both of which meet outside the public eye, defended and promoted a software project that costs California more than a half-billion dollars before it was torpedoed last year, under pressure from the Legislature.
Earlier this year, the Legislature included a requirement in the 2013-14 budget passed in June, saying the Judicial Council must open up its advisory committees. But Governor Jerry Brown followed with a veto, after Chief Justice Tani Cantil-Sakauye advocated against the provision.
Then in August, the Legislative Analyst's Office issued a report on statements of legislative intent tied to the budget appropriations. The report's very first statement of intent required that the Judicial Council submit to the Joint Budget Committee by January 1st a report on implementation of an open meeting rule.
Earlier this month, the Judicial Council proposed a draft rule with 17 exemptions.
In comments on that draft, Terry Francke with the open government group CalAware said it should follow the more precise language of California's sunshine laws, the Brown and Bagley-Keene acts, that guarantee the public's right to attend meetings of local legislative bodies and state agencies in California.
Michelle Castro with the Service Employees International Union, which represents many court workers, made the same point.
"For example, on the exemption on draft reports and agenda setting," Castro said, "we neither see such broad exemptions in Bagley-Keene nor believe there is anything unique about the judiciary that would justify these broad exemptions."
In particular, Castro attacked language limiting the open meeting rule to discussions on matters ultimately sent to the council.
"If these are truly advisory bodies to the Council, what sort of issues would not be reported to it?" she asked. "Is nonpublic discussion or decision by a majority of an advisory body of an issue within its jurisdiction permitted so long as the issue is not 'on the agenda' for an upcoming meeting?"
"There is nothing similar in Bagley-Keene, and the exemption undermines the entire purpose of open meetings by permitting secrecy on any matter where there will not be a report," Castro added. "There is no basis for such an exemption."
But the most scathing comment came from the judges' Alliance which recited the history of bad ideas that has tarnished the council's reputation, from the Court Case Management System software project to a gambit to strip the trial judges of their power to choose their presiding judge and head clerk.
"The identities of the people responsible for the branch's greatest missteps -- missteps which have cost the taxpayers hundreds of millions of dollars and which have sapped our credibility with the Legislature and the public -- remain shrouded in mystery," said the Alliance judges. "We do not know who came up with the idea for CCMS, and no recorded vote to begin the project exists in the historical minutes of the Judicial Council."
"It took three years to discover the identity of the Administrative Office of the Courts staffer who drafted legislation that would have stripped local bench officers of the right to pick their own presiding judges -- and we still don't know whose brainchild it was," said the Alliance judges. "Without transparency, there is no accountability, and without accountability, there is no reform."
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