Alliance of California Judges
July 3, 2013

In signing the recent Budget Act, Governor Brown used a line item veto to eliminate the requirement that the Judicial Council open its policy meetings to the public. The Alliance thanks Speaker John Perez for his leadership and courage in seeking greater transparency in our branch by including this language in the Budget Act. The veto followed vigorous lobbying against the measure by the Chief Justice, the Judicial Council and the AOC. In arguing in favor of the veto, the Chief Justice is reported as stating that the immediate provision should not become law as to the judiciary because “we are different.”

We are different only in performing our adjudicatory function in deciding cases and controversies. As to the expenditure of public funds we are not different, except that the decisions to spend that money are made by judges and bureaucrats who are not elected and who make many of their most important decisions in total secrecy.

There is talk of transparency and accountability, of a “culture change” within the Judicial Council, but until the voting judicial members of the Judicial Council are elected by their peers, true change is unlikely. The problem is systemic: only judges who have demonstrated a commitment to the status quo are appointed to voting positions. In advocating for this veto, the Judicial Council has chosen to ignore the dismal reputation it has garnered in the State Capitol.

The Alliance continues to advocate for democratic selection of the voting judges on the Judicial Council and a reassessment of branch priorities. Notwithstanding the $63 million added to the trial court budgets, the drastic cuts will continue -- many courts, including some large ones, have not yet implemented all the reductions they need to make by July 2014. We continue to advocate for audits of the Judicial Council program budget, the Judicial Branch Facilities program budget, and the court construction funds.

At the request of staff of the Assembly, the Alliance provided our views on the need for the public access measure. The points we made are these:

  • The Council has refused even to reveal the agendas for their yearly planning meetings, even after the meeting is held and even when the requests have come from judges. At these meetings of only those judges invited by the Chief Justice, long term plans are formulated that guide the actions of the Judicial Council for five years. The meetings are often run by highly paid "facilitators" hired by the AOC who can steer meeting participants toward the desired outcomes that later become the marching orders for the Council.
  • Internal committees of the Judicial Council meet in absolute secrecy. The Executive and Planning Committee, which acts in place of the Council between meetings, enacted the Judicial Council Governance Policies less than four years ago without a vote of the Council and without any public circulation, all in violation of the stated policies then in effect. Had the meetings of the Executive and Planning Committee been open to the public, or at least to judges, this sleight of hand never could have taken place.
  • All Council votes over a period of more than ten years were unanimous, with the exception of six votes.  On those rare occasions, there were only one or two dissenters and the position favored by the AOC and Chief Justice was adopted. During this period of time, there were hundreds of votes. The Council decisions are usually made in advance at closed meetings and the actual Council votes are merely pro forma, as the virtual 100% unanimity proves.
  • Judges and their courts are not represented on the Council. The Chief Justice appoints all of the judicial members of the Council and they are said to represent "the judiciary." The decisions made, however, greatly affect the public and each and every judge and justice in the state. Rules of Court passed at these meetings have the force of law, yet the Rules Committee also meets in secret.
  • The members of the various advisory committees and task forces of the Council are likewise all appointed by the Chief Justice. Each of these committees and task forces routinely meet in secret and their decisions are often preordained by AOC staffers assigned to each committee. The pressure to accept and support the favored position of the AOC and Chief Justice is stifling.
  • In short, the system has the trappings of representation, openness and widespread participation, but in reality things are scripted and run by the Chief Justice and AOC. Their appointed Council is simply a rubber stamp, as are many of the "advisory" committees. It is critical that the actions of these unaccountable groups be subjected to greater scrutiny. At a minimum, the meetings must be open to any judge or justice who wishes to participate.
  • CCMS is the model of the kind of mischief this system promotes. It was created in secret -- there was never a vote of the Council to begin the project. It cost over $500 million dollars and destroyed our credibility with the Legislature and the Governor, as well as the public. It could not have bled the courts dry for as long as it did if the decisions that began the project, and later enhanced and prolonged it, had been subjected to public scrutiny. Instead, our appointed leaders aggressively lobbied to prevent an audit of the ill-fated project.

Finally, we include an article by Bill Girdner of the Courthouse News Service which reports on the Judicial Council’s adoption of e-filing rules that included a “poison pill” for public and media access, after being discussed and debated in secret. Mr. Girdner’s article reveals the depth of the public and legislative outrage that is being directed to the Judicial Council.

We do want to add one positive note: the Judicial Council has adopted a rule change that provides that the presiding judges will now elect their chair, who will serve as a nonvoting representative to the Judicial Council. Since our elected presiding judges have been afforded the right to select their own chairperson, the obvious question becomes: Why can't all judges of this state also be trusted to elect representatives to the Judicial Council? The Chief Justice could immediately achieve democratic and transparent representation by simply agreeing to appoint the judicial members of the Judicial Council after a fair election by their peers. That would be real reform.
 
The Directors of the Alliance of California Judges

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Judicial Council Overrides Press Objections to New E-File Rules
By BILL GIRDNER

     The Judicial Council on Friday overrode objections from California's newspapers and open government groups that said a "definitional sleight of hand" had been slipped into proposed electronic filing rules with the apparent intent of delaying access to public records.

     In adopting the objectionable rules by unanimous vote, the Judicial Council added on to a list of moves made by California's court bureaucracy that are criticized by legislators for shutting the door to open government.

     Those measures include a bill to tack a $10 fee onto every file request made by a journalist and anyone not a party to a case. The bill was proposed by the Judicial Council and shot down by the Legislature earlier this month, after Assembly member Bob Blumenfield lectured court administrators on wasteful spending.

     The Legislature then included a provision in the state budget requiring the Judicial Council and its committees to open their meetings to the public. After lobbying by California's Chief Justice Tani Cantil-Sakauye, Governor Jerry Brown on Thursday "blue penciled," or eliminated, that transparency provision.

     "The veto is a mistake," said Blumenfield, the powerful chair of the Assembly budget committee. "The public has a right to know the decisions affecting access to justice and the inner workings of an entire branch of government.

     In Friday's vote, the Judicial Council adopted rules proposed by the council's technology committee, rules that were debated and formulated in secret sessions, precisely the sessions that Blumenfield and the Legislature sought to open up.

     The press groups objected to the proposed electronic filing rules because they could be ripe for exploitation by local court officials to delay access to court records until they are "officially filed," meaning "processed and reviewed" by court workers, a series of bureaucratic tasks that can take weeks. By that time, the new cases are no longer news.

     For the Los Angeles Times, Karlene Goller wrote to the council, "The suggestion that the public's and press' ability to access judicial records can be delayed until a document is deemed 'officially filed' is inconsistent with well established constitutional principles"

     The press groups objecting to the rules' tricky set of definitions included the Bay Area News Group, the California Newspaper Publishers Association, The Press Democrat Media Company, Courthouse News Service, Californians Aware and the First Amendment Coalition.

     "The Judicial Council should not countenance the definitional sleight of hand when the public's access to court records -- a right that is fundamental to the transparency of the judicial branch of our government -- is at issue," wrote Rachel Matteo-Boehm, Roger Myers and Katherine Keating with Bryan Cave on behalf of the press groups.

     The press comment added, "The proposed rule change would thus give court administrators unbridled discretion to delay press and public access to fundamentally public records until administrators decide such access is appropriate -- even if it is days or weeks after the 'filed' date," said the Bryan Cave lawyers.

     On Friday, council members voted to adopt all the rule changes the press had warned about.

     "They did not address our request to clarify the rules to say they are not designed to affect public access and the written response to the press groups continued to suggest the fundamentally unconstitutional notion that a new filing is not public until it's processed," said Matteo-Boehm.

     The technology committee that proposed the e-filing rules is also the committee that pushed the now-defunct Court Case Management System, recently seeking to pour more money into the cumbersome software. The CCMS project cost the state a half-billion dollars before it was halted at the direction of California's Legislature.

     The two projects, CCMS and e-filing, are inextricably mixed in California. The two courts that are pushing e-filing, Orange County and San Diego, are among the very few California courts that adopted the controversial software.

     In his testimony Friday before the Judicial Council, technology committee chair Justice Terence Bruiniers answered the criticism from the press saying, "The reality is that paper filings that come over the counter will sit on a desk in a back office waiting for a clerk to have the time to be able to review and file those and put them in the public record."

     Newly filed cases are indeed normally placed on a desk to be processed.

     But journalists currently have access to the new actions on the day they are filed, in other words, delivered to the court, in many California courts, including the superior courts of Los Angeles, San Francisco, Alameda, Fresno -- and formerly in Orange County.

     Bruiniers continued, "It is interesting that Orange County's experience with mandatory e-filing indicates that some of the filings were turned around in under two hours -- 22% of the filings. Most of their filings are completed within 24 hours."

     That statement is categorically at odds with the direct, daily experience of reporters in Orange County who review the new cases every court day.

     When a case is electronically filed in that court, as determined by its file stamp, it is sorted into an electronic bin, not unlike paper filings that go to desks. A court worker must then process them, a set of tasks that in the cumbersome CCMS takes longer than processing a paper case in a simple case management system.

     The time it takes for that processing varies tremendously.

     Last week, it was taking roughly 72 hours or three days, said reporters covering the court. This week, the court has been catching up and, towards the end of the week, most of the cases were taking one day to show up.

     "This is their pattern," said Joanna Mendoza who reports on Orange County for Courthouse News. "They start falling behind and then somebody pays attention and they get caught up. From past experience, it will stay this way one or two weeks and it will slowly drift back to 48 hours."

     What reporters have been able to determine is that the time between when all the processing is completed and the time an image shows up on the court computer is roughly two hours, and that may be the statistic Bruiniers is referring to. But it masks the usual multi-day delay between when a case is filed with the court and when it can be seen by press and public.

     Still referring to Orange County, Bruiniers said, "There is no distinction between internal or external users." That statement is incorrect.

     He added, "In other words, once they are filed, the media has access at the same time that any bench officer has access to those files." That statement is correct.

     Judges are not the only internal users. The staff has access to the new cases in the electronic bin where they are delivered. Court workers must have immediate access to newly filed cases in order to process them.

     Journalists, including Courthouse News, have asked for access to that bin - an access provided to the press in state courts outside California -- and Orange County's clerk has refused.

     Bruiniers continued, "So, e-filing would provide far greater and more convenient and more immediate access to these files than any of the courts that don't have e-filing can currently provide."

     That statement is incorrect. It is in fact the other way around.

     Courts that do require e-filing for some or all cases, San Diego and Orange County, generally delay press access from one to three days, sometimes longer.

      In contrast, courts that do not permit e-filing, in Los Angeles, San Francisco, Alameda, Contra Costa, Fresno and Bakersfield, provide journalists with same-day access to the newly filed cases, on the day they cross the counter into the court, in other words, on the day they are filed.

     Years ago, prior to electronic filing and other electronic processes such as scanning documents, Orange County also provided journalists with access to the new cases on the day they were filed, allowing for fresh news coverage of new legal disputes.

     When the court began to delay access, journalists among the group of papers that covered the court, the L.A. Times, the Orange County Register, Courthouse News Service and City News Service, noted the immediate decline in coverage of new actions. Most reporters abandoned coverage of the new filings, as a result.

     "We're in the news business, not the history business," said Milt Policzer, a journalist who has covered Los Angeles Superior Court for 30 years for a range of news organizations, including the Daily Journal and Courthouse News.

     "News, in general, is supposed to be reported as promptly as possible for intelligent reaction," he added. "We don't want to learn that a dictator has been overthrown two days after it happened. Lawsuits may not be quite as dramatic, but if you have a stake in them, you're going to want to know immediately."

     The rules adopted by the Judicial Council dance around the notion that the public record is not public until court officials deem it be -- by scanning it, typing an electronic docket, or simply putting it in a stack on a desk, a set of procedures that take days in general and ironically much longer for some of the most newsworthy cases.

     A survey of cases filed in Ventura, for example, showed that while delays on ordinary filings run from two days to one week, the delays on big cases, such as environmental challenges, a class action against a pharmaceutical manufacturer, and water rights disputes, run to a month or more.
     Ventura is another CCMS court, like Orange County and San Diego.

     In their written comments objecting to the e-filing rules, the press groups said, "At best the proposed changes are confusing without serving any meaningful function. It appears the true purpose of introducing the concept of an 'officially filed' document into the Rules of Court is to provide the administrators with justification for denying public access to records that have been 'filed,' under the long-understood meaning of that term, until after they have been "officially filed."

     Specifically, rule 2.254(c) says, "An electronically filed document is a public document at the time it is filed unless it is sealed."

     But rule 2.250 (b)(7) amends the definition of electronic filing to say, "This definition concerns the activity of filing and does not include the processing and review of the document and its entry into the court records, which are necessary for the document to be officially filed."

     The definition for e-filing, rule 2.253(b)(1)(7) says, "Any document that is received electronically must be processed ... to be filed as an official court record."

     In attacking those definitions inserted into the e-filing rules, the press groups said they were open to exploitation by local officials resisting public access.

     "It appears the primary -- and perhaps sole -- purpose of the 'officially filed' concept is to justify arguments by court administrators that the public has no right to access a court record until court staff deem it fit for public viewing," said the press comments.

     "Rights fundamental to the democratic process -- like the right to know what goes on in the courts -- are meaningless if they can be disregarded when they become inconvenient," their comment concluded. "As history has taught us, rushing forward without taking the time to assess how these systems will actually work for all concerned is quite likely to result in a system that is worse rather than better."

 

 
Alliance of California Judges
1817 Capitol Ave., Sacramento, CA  95811

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