OPEN GOVERNMENT — A Los Angeles Superior Court judge is charging, in a newspaper's guest column, that the state's highest judicial rulemaking body breached its own rules by secretly adopting major changes in how the judicial branch's governance is done.

Judge Charles Horan, who also serves as a director of the Alliance of California Judges, writes in today's edition of the Metropolitan News-Enterprise that:

  • the California Judicial
    Council    —the state court system's governing body—and its bureaucratic apparat, the Administrative Office of the Courts (AOC), have completely rewritten the Judicial Branch Governance Policies,
    and then enacted them in secret;
  • the AOC then completely rewrote the California Rules of Court pertaining to
    branch governance, giving itself an unprecedented grant of policy-making
    power, and got those rules passed without any Judicial Council discussion,
    and without the public and members of the judiciary being given any chance to
    comment prior to their enactment.

In Judge Horan's words,

For years,
critics of the Judicial Council and the Administrative Office of the Courts
have decried the manner in which these organizations operate—largely in secret,
shielded from the scrutiny of the public and the state’s judges, declaring
themselves exempt from public meeting laws that bind others. The response to
these complaints is always the same: “Our decision making is open, transparent,
and fully accessible to all.”

Chief
Justice Ronald George himself recently repeated his commitment to the transparency
of council operations, ironically in a letter to the Alliance of California
Judges denying our request to open the Judicial Council “issues meetings” to
the public.1 In that letter, he explained that there was really no need for our
presence at the meetings anyway, assuring us that:

     “The Judicial Council
does all (emphasis added) of its policy making at public business meetings held
at least five times each year.” The chief justice went on at length to extol
the “openness” of the council’s processes.

 Others in positions
of power, notably the head of the AOC, William Vickrey, and Court of Appeal
Justice Richard Huffman, a powerful 13-year council veteran, continually echo
these sentiments.

 Sadly, it appears
that the critics had it right.

While
researching a matter involving the authority of the Judicial Council a few
months ago I came upon a 12-page document titled “Judicial Council Governance
Policies, June 2008.” It can be viewed at
www.courtinfo.ca.gov/rules/documents/pdfFiles/appendix d.pdf.

The
document apparently replaced the 1998 governance policies, which had been
adopted then by public vote of the council, as had the rules implementing those
1998 policies. It is not a trivial document. It is described as “the Council’s
framework for how it engages in policymaking; how it is organized; what the
roles and responsibilities are for its members, officers, and committees; what
the council’s relationship is with the director of the AOC and the AOC, and the
areas of accountability.”2

In other
words, it is the guts of the governance machine.

Other than
a one-line reference in the December 2008 minutes, a search of all council
minutes in 2008 failed to turn up any mention of the new policies. The first
substantive reference came in August 2009, when, without public circulation or
comment, a massive rewrite of page after page of the California Rules of Court
Governance Rules (the so-called Title Ten Rules) was enacted by the council,
without public vote, on the consent agenda.

At that
meeting the June 2008 policy was made an appendix to the rules. It was
explained in a written report by Justice Huffman submitted to council members
on that date that the June 2008 policy had been adopted by the council at an
earlier time, and that the rules were necessary to bring things into conformity
with the new reality. The report failed to explain how, when, and by what
mechanism this adoption had taken place.

Startlingly,
I also learned that the rules had never even been sent out for public comment,
contrary to the usual practice, because of a written request by Justice Huffman’s
Executive and Planning Committee made to the Rules Committee. In
uncharacteristically confusing style, Justice Huffman wrote that to send the
voluminous rules out for comment would “invite comment on decisions that the
council already has made, which would erroneously imply that council decisions
about its internal operating procedures after having been made, are subject to
public comment and revision.”

 This argument failed to acknowledge
that, at a minimum, the public, and judges, had an interest in ensuring that
the rules comported with the policies, even if the policy was somehow beyond
reach, itself an unsupportable claim. Nonetheless, the Rules Committee acceded
to the non-circulation request notwithstanding its apparent conflict with the
2007 published policy on the subject of rule circulation.3

The
council, too, was apparently unanimously convinced by this logic, and without
objection, the rules were passed automatically without vote, without
discussion, and without a public comment period. The rules are found at
http://www.courtinfo.ca.gov/rules/amendments/august2009.pdf.

Note: The Judicial Council's website provides nothing at that URL but automatically diverts to an unrelated page. To identify the provisions amended one must check all of Rule 10, to isolate those "amended effective August 14, 2009." But even then one is unable to determine what the changes were except by cross-reference to documents no longer on the website.

The rules
themselves are a bonanza of power for the AOC. Rule 10.2(b)(4) now allows
policy making, a job the Council has always claimed for itself, to be delegated
to the director of the AOC, currently William Vickrey. This change alone may
have accounted for the secrecy involved in the drafting and promulgation of the
rules. In summary, the rules seem to put the director at the center of the
judicial universe.

Since this
original mystery remained, I requested help from various AOC staffers.

They tried
their best to answer one simple (I thought) question for me: When and how was
the June 2008 Judicial Council Governance Policies revision adopted by the
council? After exhaustive search efforts over several days, they gave up,
confessing to shared confusion. Like me, the only mention they could find of
the council dealing with the matter was at the August 2009 meeting, a full 14
months after the supposed adoption by the council of its governance policies.

Only after
additional correspondence, which was widened to include the chief deputy
director of the AOC, did the answer finally come from a high ranking AOC
lawyer. The policy was passed by an “[e-mail] vote of the Council which was
concluded on 6/23/08.” This vote occurred between regularly scheduled council
meetings. (The vote was, of course, 26-0.)4 No press release occurred mentioning
the governance change until August 2009, 14 months later.

Interestingly,
the e-mail that called for the vote was sent by a staffer and states that the
vote is being called by Justice Huffman, chair of the Executive and Planning
Committee. The minutes of that committee have been reviewed and are silent as
to this referral.

How could
the council act in secret on a matter of such gravity and complexity, and one
so deserving of public scrutiny? Well, the rules in effect then, and now,
suggest they couldn’t.

Per rule
10.5(h), the council is only empowered to act between meetings on “urgent
matters if the Chief Justice or the Administrative Director approves.” Each “circulating
order” so adopted by the council “must be included on the agenda for the next
business meeting as an information item.” Was this one? No.5 There is no
exception in the rules for governance policies.

Certainly
the judiciary must have the prerogative to handle certain matters out of public
view, but what was the reason here? What was the urgency prompting the secret
vote? What evil was the council trying to prevent by keeping their work hidden
from their 1,500 colleagues?

The
deliberative process at times requires secrecy, but should the decisions
themselves also be made in secret, and then be kept secret? This is ludicrous,
and a perversion of the process.

Can it
seriously be argued by our leadership that the over 1,500 California trial
judges and hundred or more appellate justices really had no right whatsoever to
have input to our very governance policies? How can we tolerate a system
wherein it takes near detective work, two months of inquiry, and a written
opinion by an AOC lawyer to get answers to what should be simple questions?

It seems
that we may need more than legislation to cure our problems. Perhaps the
initiative process should not be scrapped, as is apparently favored by the
chief justice, at least until a few necessary changes to Article VI can be
made, including the manner in which council members are selected. It is time to
discuss democratizing that process.6 __________________

1. These
private “issues meetings” are held the day before each public Judicial Council
meeting.

2. Aug. 4,
2009, report from Executive and Planning Committee to Council.

3. Rules
Committee may recommend non-circulation of proposed rules if they present
merely a “noncontroversial or a non-substantive, technical change or correction”—“How
a Proposal Becomes a Rule,” Administrative Office of the Courts, September
2007.

4. Unanimous
votes are the norm, and debate is rarely robust. A records search revealed only
six non-unanimous council votes in the 13 years for which records are available
online.

5. The only
circulating order posted at the next business meeting following June 23, 2008,
dealt with conversion of S.J.O. positions to judgeships.

6. All
judges and justices on the council are currently appointed to their positions
by the chief justice. Any changes to this procedure require a constitutional
amendment.