Powerful Committee Opens Doors|Only to Close Them Again

(CN) - Under new open meeting rules, the most powerful committee on the California Judicial Council met this week and, after a perfunctory approval of the upcoming full council agenda, Justice Douglas Miller told everyone to hang up and call a private number. The meeting then continued outside the earshot of press and public to consider committee nominees, according to its preset schedule.

"The new rules regarding open meetings is absolutely toothless," said Sacramento Judge Maryanne Gilliard. "Though Branch leaders have promised transparency, they balk at every turn."

Gilliard is one of the founding directors of the Alliance of California Judges, a group of roughly 500 state judges, pushing to rein in the San Francisco-based court bureaucracy, limit its influence on budgets and rules, and bring more democracy into the selection of council members. The Alliance has consistently pushed for open meetings within the myriad committees that feed the Judicial Council, and won that fight last year by order of the Legislature.

The Executive and Planning Committee, considered the most powerful of the council's committees, met Tuesday via teleconference to discuss next week's agenda for a meeting of the full Judicial Council, among other matters. The agenda and meeting materials were posted, noting several agenda items would be discussed in closed session.

Among the items was one entitled, "Review materials and develop recommendations to be sent to the Chief Justice regarding advisory committee nominations."

How judges and justices are nominated and recommended for positions on the Judicial Council and its myriad committees has been a topic of great interest and controversy among trial judges, especially those who have urged transparency in the council's and its committees' decisions.

"Certainly judges of this state have a right to know how selections to these committees are made, and what actual, as opposed to published, criteria are being used in making the decisions," Gilliard said.

To justify private discussion of that item, the committee cited California Rule of Court 10.75(d)(1), which allows a meeting to be closed if it involves the discussion of "the appointment, qualifications, performance, or health of an individual, or other information that, if discussed in public, would constitute an unwarranted invasion of personal privacy."

The rule suggests a conflict between the principles of privacy and the ability of judges to know how their representatives on public committees are chosen.

Gilliard said the exemption was too broad and too vague, and could easily encompass any discussion of committee applicants.

"It appears that since they closed the session as to discussion of all applicants, they are not relying on individualized criteria, as required by rule 10.75(d)(1). This suggests that ANY public discussion of the applicants and the decision-making process of the committee is somehow an 'unwarranted invasion of personal privacy.' Again, the exception seems to have swallowed the rule, as predicted."

The privacy exemption is one of ten put forward by the Judicial Council last year.

The exemptions were challenged by the press and open government advocates, but the council voted to approve the exemptions when it passed the rule in April. The open meetings rules went into effect in July.

A few months earlier, in December, Chief Justice Tani Cantil-Sakauye said she supported open meetings, but wanted the Council, not the Legislature, to draft the rule, keeping privacy and ethical considerations in mind for judges who volunteer to sit on committees.

"Judges have a code of ethics that guides -- really guides -- their input, their membership, their communication because the law requires a judge to be neutral," said Cantil-Sakauye. "And so when this concept came up we were not opposed but we needed to draft this ourselves because we have different considerations."

When the rule was first presented to the press last year, Justice Miller, who helped draft the rule as head the Executive and Planning Committee, said it was something he wanted to "get right," but added, "We have to balance that with how we do business."

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