The meetings of the Judicial Council are, generally speaking, meaningless. The really important decisions are made behind closed doors by the Council’s five standing internal committees or its other advisory committees. The Judicial Council just acts as a rubber stamp. Maria Dinzeo, who reports on the Judicial Council for Courthouse News Service, recently noted “a pattern where proposals coming out of the committees are generally ratified with perfunctory debate and without substantial opposition.” (See http://www.courthousenews.com/2013/11/25/63214.htm .) As we’ve pointed out before, during one ten-year stretch, all the Council’s votes except for six were unanimous.
The Legislature has expressed its disapproval of the Council’s lack of transparency. Earlier this year, the Legislature added Provision 15 to the 2013-14 budget passed in June. Provision 15 would have required the Judicial Council to open up its advisory committees to public view. The Chief Justice lobbied against it, and the Governor vetoed it.
In August, the Legislative Analyst's Office required that the Judicial Council send a report to the Joint Budget Committee on its progress in implementing an open meeting rule. That report is due on January 1.
In late November, with the deadline just a month away, the heads of the internal committees hastily cranked out a draft proposal for an open meeting rule. They gave the public just six days to comment on it, then submitted it to the Judicial Council for its December 12-13 meeting. The draft proposal left much to be desired. It excludes a much broader range of material than does the Judicial Council’s own open-meeting rule. It features 17 exemptions, some of which are sweeping.
But even this draft rule, as weak and flawed as it is, was too bold a step for the Judicial Council. Justice Marvin Baxter compared the Council’s advisory committees to staff meetings in the governor’s office, which are closed. "I can recall that in the executive branch the senior staff would meet daily and make recommendations that ultimately went to the governor," said Justice Baxter. "Those meetings weren't public because they would chill the conversation."
Chief Justice Tani Cantil-Sakauye also had reservations about open committee meetings: “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," she said. "And so when this concept came up we were not opposed but we needed to draft this ourselves because we have different considerations."
You can find Maria Dinzeo’s article about the meeting at http://www.courthousenews.com/2013/12/13/63749.htm.
We are baffled.
Justice Baxter’s analogy between Judicial Council committees and executive branch staff meetings fails. The meetings of the Council’s subsidiary committees are not mere staff meetings. These committees are primarily made up of judges, not staff. The committee members are not brainstorming ideas; they are actually deciding things.
We are at a loss to understand the ethics concerns voiced by the Chief Justice. If an issue arises that raises an ethical issue for a judge on a committee, he or she can simply decline to participate in the discussion. Or the committee can specify in its minutes that a certain portion of the meeting was closed, and can make clear at whose request.
We have another concern. During the meeting, a reference was made to “drilling” the issue down to the trial courts (perhaps a misquote from the electronic transcript). We are worried that in proposing a new rule, the Council will attempt to include and embroil the trial courts as a tactic to foster opposition. The trial courts do not make statewide policy. The Legislature directed its open meetings requirement to apply to the Judicial Council, the self-proclaimed “policy-making” body of the Judiciary.
Somewhere in the distant haze of memory, somebody came up with the misbegotten idea that became CCMS. Some committee must have voted on it. Maybe the Judicial Council itself approved it. We just don’t know. We only know that no recorded vote appears in the minutes. We don’t know who made the decision that brought the judiciary to the brink of bankruptcy, or how it got made. We don’t know if the people most responsible for the CCMS disaster are still in positions of authority.
The Legislature has said repeatedly that it wants open meetings. The Legislature is not happy with the way we do our business. Our budgets reflect that dissatisfaction. We should be bending over backward to prove that we’re committed to transparency. Instead, we quibble. We justify our secretive behavior by claiming that the executive branch and the legislative branch do the same thing—as though the notion of judges holding themselves to a higher standard of openness never occurred to us. We cite the Canons of Ethics but don’t specify which ones. We act as though our branch didn’t have a track record of fiscal irresponsibility and poor decision-making that justifies the Legislature’s skepticism. We behave as though we have nothing to prove to the Legislature when it comes to reform.
It should not be lost on the Council that the chair of the Senate Judiciary Committee, Noreen Evans, has a different mindset than her Judicial Council colleagues when it comes to transparency: "In the last few years, what we're seeing is a reduction in public trust of our institutions,” she said. "I believe that trust cannot be restored without some level of transparency. And as difficult as that is, in the long run it's really worthwhile."
The Chief Justice recently unveiled a new set of initiatives for the Branch. She calls it “Access 3-D.” We suggest a fourth D: Doors. Please open them.