The Recorder Cheryl Miller 2013-02-22 "The people have the right of access to information concerning the conduct

of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny." California Constitution, Article 1, 3 (b)(1) For decades, California's courts have upheld, even championed, laws granting the public open access to government meetings. They've enforced strict boundaries on what elected officials can discuss in closed session, chastising one city for using open meeting exemptions "as a shield against public disclosure of its consideration of important public policy issues." Shapiro v. City Council of San Diego, 96 Cal.App.4th 9904 (2002). They've ordered agencies to provide the public with accurate agenda descriptions of what they plan to do in session and then stick to them. Carlson v. Paradise Unified School District, 18 Cal.App.3d 196 (1979). And they've deemed public access to government information a check "against the arbitrary exercise of official power and secrecy in the political process." CBS v. Block, 42 Cal.3d 646 (1979). But when it comes to running their own governmental house, judicial leaders have taken a more do-as-I-say, not-as-I-do approach. The Judicial Council meets regularly in closed session, each time citing an expansive Rule of Court that gives the chief justice broad authority to shut out the public. Sometimes a vague reason is given for the closed session "privileged attorney-client discussions," for example. Many times, however, the meeting is simply listed as a "nonbusiness meeting" and closed. There guidelines for when a meeting can be closed are vague and rarely does the council report any action taken in such meetings. While the council circulates agendas prior to its meetings, the five so-called internal committees that perform much of the planning and policy shaping for the branch do not. Brief minutes of these committees' meetings are usually included in the Judicial Council agendas, but often not until months after the gatherings occurred. The council's Dec. 14, 2012, information packet, for example, included minutes for an Aug. 12, 2012, meeting of the Policy Coordination and Liaison Committee. The summary noted that the committee had opposed a pending bill dealing with bail procedures for felony suspects. But it offered no record of committee members' votes and no reasoning

behind the committee's stance. And by the time a report of the committee's action was made publicly available, the bill had already died in the Legislature more than two months earlier. The workings of the council's more than three dozen advisory panels, task forces, working groups and subcommittees are even more secretive. No agendas or minutes for their meetings are posted publicly. Instead, the administrative director of the courts offers in his regular reports to the council two- or three-sentence reviews of their recent gatherings. Chief Justice Tani Cantil-Sakauye said the council hasn't considered whether the branch should be doing so much work in private because "no one's really asked." Opening committee meetings "is probably a good idea to consider," so long as it doesn't "chill" discussions or generate new costs, she said. "Maybe it would serve to educate people about what the Judicial Council does and how the Administrative Office of the Courts is different from the Judicial Council," CantilSakauye added. But she and other branch leaders still contend that the public is missing nothing in these shuttered committee meetings since the Judicial Council meets openly to make the final decisions on court rules and branch policies. "That's the same argument you hear with committees under the Brown Act," said Mary Duffy Carolan, a Davis Wright Tremaine partner who has represented numerous news organizations. The Brown Act is the California statute governing access to legislativebody meetings. "A lot of deliberations up to decision making happen in committees," Carolan said. "It's important for the public to see that in process so they can be fully informed at the time a decision is actually made." No one has accused any of the committees of wrongdoing. In fact, Third District Court of Appeal Justice Harry Hull Jr. said he's never even been approached about opening his Rules and Projects Committee meetings to the public. (Rule of Court 10.10 says internal committee meetings are closed to the public unless a chairperson decides to open them.) "For most people who are not involved in these issues, they'd probably be bored to tears" by these committee hearings, Hull said. But the branch does have a recent history of being hurt politically and financially by not being more open about its work. In a February 2011 report, state auditor Elaine Howle specifically cited a lack of transparency in planning and decision making as a prime reason projected costs for the now-defunct Court Case Management System skyrocketed to an untenable $1.9 billion. Last November the Legislative Analyst's Office also concluded that the branch may have overpaid by as much as $160 million for a new Long Beach courthouse under a

controversial 2010 public-private partnership deal crafted largely in private by judiciary officials, the governor's office and a handful of lawmakers. Cantil-Sakauye has made the call for greater branch transparency a main theme of her two-year tenure as leader of California's judiciary. She and the council did end her predecessor's practice of holding closed-door "educational" meetings of the Judicial Council the day before the council's public gatherings. "The council doesn't have closed sessions talking about issues coming before it, talking about how we're going to vote," said Fourth District Justice Douglas Miller, who chairs the Executive and Planning Committee, which sets the council agenda. "The council has substantially reduced the number of closed sessions over the last two years," Miller said. But members still met privately for almost 14 hours through various meetings in 2012, according to council agendas and minutes. And even some participants privately question why. One former Judicial Council member recalled closed-door discussions about personnel issues, a subject that open-meeting laws affecting legislative agencies typically allow to be considered in private. But some topics, the member said, focused on "nonpersonnel but sensitive" issues including "political strategy" that didn't seem to warrant the hushhush treatment. Rule of Court 10.6 allows the chief justice to close a meeting for a host of reasons, from discussion of litigation and land deals to consideration of "legislative negotiations." A past advisory committee member, who asked for anonymity because he has proposals that may go before the council, said he, too, was perplexed as to why the public would be shut out of his panel's meetings. Debate could be intense at times, he said, but probably wouldn't have been affected by an audience. "I don't think there's anything secret or confidential going on," he said. "They were just policy issues." But the sheer breadth of policy issues studied and debated by those advisory committees and task forces is enormous. They have considered changes to the death penalty appeals process, testing rules for court interpreters, budget allocations for trial courts and construction priorities mostly in private. Some committees have occasionally opened their doors. Panels dealing with family law, courthouse construction, conservatorships and foster care have held public meetings in recent years. But they're the exception to the rule.

No Rule of Court specifically authorizes advisory committees to meet in closed session. They do so because that's the way it's always been done and because there's no rule that says they can't. "As far as authority for conducting advisory committee meetings is concerned, there is no prohibition in law for advisory committees to the Judicial Council to conduct meetings which are closed to the public," said Steven Jahr, the administrative director of the courts. But that's exactly the wrong conclusion to draw under California's Constitution, said Joseph "Terry" Francke, general counsel to Californians Aware, an advocate of improved public forum laws. Voters in 2004 overwhelmingly approved Proposition 59, the socalled Sunshine Amendment, which expresses a broad public right to government records and meetings. No definitive legal case has yet determined that Prop 59 applies specifically to the judicial branch. But First Amendment groups insist that it does. "The courts are under a presumptive assumption of access, not only in their judicial proceedings but in their administrative instruments as well," Francke said. Francke conceded that such committee meetings may be tedious or even irrelevant to people who aren't gadflies or self-proclaimed watchdogs. "The question is, though, even if there are a confined number of interested audience members, shouldn't that be enough to conduct the session openly?" he said. Hull said his committee has had some preliminary discussions about inviting public comment on issues earlier in the traditional rule-vetting process. Typically, advisory groups pass their recommendations to the rules committee, which can send them out for public review before forwarding them to the Judicial Council. But even if the advisory groups take public input earlier, there's currently no interest in opening their proceedings, he said. The Judicial Council is scheduled to meet Monday. One hour has been set aside for a closed "nonbusiness educational meeting" at 10 a.m.