California press groups on Friday blasted the Judicial Council's proposed open-committee rule as so riddled with broad exceptions that they swallow the rule and allow most meetings to remain closed.
As with other recent rule proposals coming out of the Judicial Council, the press focused on definitions and details that work against transparency.
"The presumption of closure instead of openness guarantees little or no public access," wrote Jim Ewert, general counsel for the California Newspaper Publishers Association, pointing to a provision that cloaks all rule committees.
"The lack of any standard in this provision allows a chair to use his or her discretion on a whim," he wrote in public comments submitted Friday. "The lack of standards combined with a complete absence of an enforcement mechanism threatens to make the proposed rules meaningless."
He emphasized how far the Judicial Council's proposed rule 10.75 departs from California's existing laws requiring open meetings by governmental bodies. Terry Francke, general counsel for the open government group Californians Aware, also criticized the rule in public comments.
"A number of highly influential bodies have been exempted from the openness presumption altogether," wrote Francke. "Those left with a putative presumption of openness are subject to closure at the discretion of the presiding officer or based on vague, expansive or undefined labels."
The history of the council's open committee rule is embedded in the sometimes contentious relationship between the Legislature and a Judicial Council that sits atop the flow of billions of public dollars.
In passing the state budget that goes into effect in July, the Legislature directed the council to adopt a rule "regarding open meeting requirements" for committees. Governor Jerry Brown then vetoed it, but urged the council to give "greater access" to committees.
The Legislature came back with a supplemental report that accompanied the budget package, saying the Judicial Council was required to submit a report on the implementation of an open meetings rule by the beginning of this year.
The Legislature was specific, saying, "The rule shall apply to any committee, subcommittee, advisory group, working group, task force, or similar multimember body that reviews issues and reports to the Judicial Council."
"Regrettably, proposed Rule 10.75 falls well short of what was clearly envisioned by this language," wrote Rachel Matteo-Boehm with Bryan Cave in public comments on behalf of Courthouse News. "Indeed, its current form, except for `budget meetings,' most meetings of the Judicial Council's advisory bodies would remain closed."
Like the open committee rule, a recent series of proposed rules and laws coming out of the Judicial Council have lead to sharp objections from press groups and open government advocates, saying they work against transparency and public access.
Last summer, the council pushed through a set of e-filing rules that provide court administrators with an excuse to delay access to newly filed public records, dismissing objections from newspaper groups and open government advocates.
A council committee then proposed another measure that would have charged journalists and all members of the public a $10 fee for every file they asked for, which would have made research of court records prohibitively expensive. The Legislature killed the fee proposal late last year, as part of the same budget process that required the council to open its committee meetings.
The council came back with the current proposed rule that would keep most committee meetings behind closed doors.
"The exemptions allowing closed meetings threaten to swallow the rule," wrote Matteo-Boehm for Courthouse News, in comments submitted Friday. "Except for budget meetings, it is hard to imagine how any meeting would not qualify for at least one of the closed session exemptions."
Among the definitions that would shield committees from observation and reporting is one saying that only committees created by "formal Judicial Council action" need be open.
Some of the most powerful advisory committees are created not by council action but through appointment by the chief justice. For example, an advisory committee that last month set out a "technology road map" for the courts was created by Chief Justice Tani Cantil-Sakauye, not by formal council action.
Under the proposed rule, the technology advisory group would therefore remain closed to press and public.
And yet the most controversial series of decisions of the last few years in the administration of California's courts involve technology, in particular a software project that bled $500 million from public coffers before being shut down last year.
Within the thicket of the rule's exemptions, the press groups also focused on a provision that would allow "circulated proposals" among committee members to stay in the dark.
"This bypass mechanism comes into play whenever an advisory body has considered a proposal 'but concluded more information was needed' or whenever the chair decides that 'prompt action is needed,'" said Matteo-Boehm. "No standards are provided as to what constitutes the 'need' for 'prompt action.'"
Another provision would allow committees to remain closed where they discuss matters that are not reported to the council. Yet another exemption automatically closes roughly one third of all the committees and advisory bodies.
Another provision prohibits in-person attendance at meetings by journalists and members of the public, making it difficult, at times impossible, to match speakers with names.
The council's rule would allow any committee to close its doors if it claimed to discuss trade secrets or proprietary information. That excuse has been advanced in the past to hide technology contracts signed by individual trial courts, and to hold back a range of documents and information of public nature.
In addition, the proposed rule would keep the public ear out of meetings to discuss non-final audit reports.
"This exception would permit an advisory body to fully participate in the analysis and conclusions of the audit report as it evolved outside of public view," wrote Ewert for California's newspapers. "This would defeat the purposes of an independent audit."
Another exception would close the doors on any discussion of draft reports and rough data.
"A closed session that permits an advisory body to discuss, deliberate, or act upon draft reports or unverified information would allow unfettered discussion on any subject without limitation and consensus to be reached wholly outside of public view," said the newspaper publishers association. "This is another example an exception swallowing the rule."
Finally, in case the many exceptions do not cover a particular committee meeting, there is a catch-all exception to allow secret meetings.
"Catch-All Exception - California Newspaper Publishers Association believes this section has the potential to swallow the rule that establishes open access to the meetings of these bodies," said Ewert on behalf of the press corps. "As currently written, there is no outer boundary to this exception and it invites the potential abuse of discretion."
As the press groups pointed out, even if a meeting somehow failed to qualify for an exception -- but was closed anyway -- nothing could be done about it.
The rule has no enforcement mechanism.
Without major changes, said Matteo-Boehm, "Rule 10.75 would do little to alter the status quo. Many, if not most, meetings of the Judicial Council's advisory bodies will continue to occur behind closed doors, contrary to what was clearly envisioned in the Legislature's Supplemental Report."
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.