Back in 2013, in an effort to fix the lack of transparency that led to the CCMS fiasco, the Legislative Analyst’s Office directed the Judicial Council to "submit to the Joint Legislative Budget Committee a report on the implementation of an open meetings rule" for its advisory bodies. So the Council came up with a rule which featured ten exceptions. At the time, we expressed concerns that those ten exceptions would wind up swallowing the rule. The Council, however, proclaimed a brave new era of openness: “The open-meeting rule marks a new era for the judicial branch in California and sets a high bar for the judicial branches in other states,” crowed Justice Douglas Miller, chair of the Executive and Planning Committee.
It’s been a year since the new open-meetings rule took effect. So how has it worked in practice? Let’s take a look at the meetings calendar for this month:
· February 2—Judicial Council Technology Committee (Closed)
· February 4—Alternative Dispute Resolution Subcommittee Meeting (Closed)
· February 5—Policy Coordination and Liaison Committee Meeting (Closed)
· February 5—Family and Juvenile Law Advisory Committee Meeting (Closed)
· February 6—Protective Orders Working Group Meeting (Closed)
· February 6—Probate and Mental Health Advisory Committee, Legislative Subcommittee Meeting (Closed)
· February 9—Small Claims and Limited Case Subcommittee Meeting (Closed)
· February 9—Unlimited Cases and Complex Litigation Subcommittee Meeting (Closed)
· February 10—Traffic Advisory Committee Meeting (Closed)
· February 19—Judicial Council (first 40 minutes closed)
· February 19—Family and Juvenile Law Advisory Committee meeting (Closed)
· February 20—Collaborative Justice Courts Advisory Committee Meeting (Closed)
· February 23—Appellate Advisory Committee Rules Subcommittee Meeting (Closed)
· February 24—Traffic Advisory Committee Meeting (Closed)
· February 27—Civil and Small Claims Advisory Committee (Closed)
Fifteen meetings, including part of the Judicial Council’s meeting, are closed. Two meetings of the Rules and Projects Committee are by e-mail only, with no public comment. By contrast, only 11 meetings are open.
And so it continues: A Judicial Council dominated by the Chief Justice’s appointees receives input from a tangled array of standing committees, subcommittees, advisory committees and task forces with hand-picked members, meeting behind closed doors. It’s an opaque, ungainly system that filters out dissenting voices, lacks internal checks and balances, and does not serve us well.
By drafting a meaningless rule on open meetings, once again the Judicial Council has thumbed its nose at the Governor and the Legislature that trusted it to reform itself. The Council has shown that it will take a lot more than an easily sidestepped, loophole-ridden rule, drafted by the very entity that wants to keep much of its business under wraps, to bring about real change. Legislators and the Governor should remember this when considering whether the reforms so necessary to our branch, such as those identified by the State Auditor, will ever be enacted voluntarily by the Council. In this regard, we echo the concerns expressed by the State Auditor:
"We are concerned that without significant changes, the Judicial Council and AOC will continue to publicly embrace addressing the weaknesses that we and others have identified but fail to take the steps necessary to actually repair those weaknesses in a meaningful and transparent way."
Another rule of court, passed to stave off legislation, is no more likely to be followed. It will take legislative action to effect the needed overhaul of the governance of our branch. By their own inaction, obfuscation and lack of transparency, the Council and its staff have created that reality.
Directors, Alliance of California Judges