Ballot Measure Could Open Court Executive Committee Meetings

Wednesday, July 30, 3003

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Advocates of State Constitutional Amendment Say:

Ballot Measure Could Open Court Executive Committee Meetings

By DAVID KLINE

SACRAMENTO (CAPITOL)—A proposed amendment to the state constitution headed for the March 2004 ballot could force trial courts’ executive committee meetings to be opened to the public, open government advocates said yesterday.

“There’s no exclusion for the judicial branch of government here,” Thomas Newton, general counsel for the California Newspaper Publishers Association, said of Senate Constitutional Amendment 1. CNPA is a sponsor of the measure.

“We don’t see anything in here that would preclude application to especially the administrative actions of the courts,” Newton added. “[But] how this thing will be interpreted is anybody’s guess.”

SCA 1, carried by Senate President Pro Tem John Burton, D-San Francisco, would establish that “the people have the right of access to information concerning the conduct of the people’s business.”

Under the measure, “the meetings of public bodies and writings of public officials and agencies shall be open to public scrutiny.”

Judges Association

Mike Belote, acting executive director of the California Judges Association, said his organization is evaluating SCA 1’s potential impact, but currently believes it would not affect the executive committees of the trial courts.

Belote pointed to a provision of the proposed amendment which says:

“This subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision ...”

“Right now, we do not believe that meetings of the court executive committees are covered by open-meetings laws,” Belote said, “and the SCA says it doesn’t repeal or nullify anything in those laws, so our understanding has been that what [the sponsors] say would not result from the passage of SCA 1.”

The judges’ representative acknowledged that if the amendment is adopted, the different interpretations could lead to a courtroom.

“That’s why there are lawyers,” Belote, an attorney himself, said.

Terry Francke, general counsel of the California First Amendment Coalition, a co-sponsor of SCA 1, agreed that it may take a court decision to determine whether the amendment would open the executive committee meetings.

Francke, a long-time advocate of “sunshine” laws for government meetings, explained:

“In its broad language, SCA 1 talks about access to the meetings of public bodies. It does not exempt public bodies in the judicial branch. And that being the case, I would expect it to affect the California Judicial Council and the other formal bodies at the state level as well as organized bodies governing the superior courts locally.”

The state’s two existing open-meetings laws, the Ralph M. Brown Act (for local government bodies) and the Bagley-Keene Open Meeting Act (for state boards and committees), do not cover the courts. The Bagley-Keene Act specifically exempts “State agencies provided for in Article VI of the California Constitution”—the article which spells out the makeup and duties of the judicial branch.

Night Court Debate

Thus it was that when a proposal to get rid of night court was debated in Los Angeles in the early 1980s, the Board of Supervisors was required to hold a public meeting on the matter, but the court’s Executive Committee met behind closed doors to discuss the same subject.

Francke said his organization has not received complaints about executive committee meetings being closed, but said that might be because “there has never been any tradition or habit of access to these bodies,” so people don’t know they are being excluded.

In Los Angeles, the Superior Court’s Executive Committee of 22 judges—plus six non-voting members—meets once a month in closed session, an assistant to Presiding Judge Robert Dukes said.

Dukes did not return phone calls for comment on SCA 1 or the purpose of having the Executive Committee meet behind closed doors. Nor did representatives of the Judicial Council.

In the capital, court spokeswoman Kim Pedersen said the 10 judges on the Sacramento Superior Court Executive Committee meet approximately 12 times a year. While Pedersen provided the names of the judges on the committee, she said she could not supply meeting notices because the meetings are closed to the public.

An e-mail forwarded by Pedersen from the Sacramento Superior Court’s Executive Office said:

“[T]he Sacramento Superior Court Executive Committee ... serves in an advisory manner to the Presiding Judge in assessing various fiscal, personnel, policy, and operational issues impacting the Sacramento Superior Court. Within this context, the Judicial Officers who serve on the Committee offer different perspectives and insights on areas of interest to the Court in a deliberative fashion as decisions are made consistent with the Rules of Court. These meetings are therefore an internal instrument the Court utilizes to advise the Presiding Judge as decisions necessary for the administration of the Court’s business are made, and are not nor have ever been open to the public.”

Francke said the decisions described in the e-mail have an impact on the public, and should be made in an open forum.

“When it comes to how the court extends or limits its services, particularly in a time of budget starvation, there are going to be a series of hard decisions made about hours and facilities and questions directly affecting... availability of the courts,” Francke said.

“And if a local court administrative body of judges has a role to play in this, then there’s no reason it shouldn’t be as open a role as that of the city council or county board of supervisors.”

Many of the provisions of SCA 1 are duplicative of existing laws, but sponsors contend the amendment would strengthen those laws through its requirement that any existing law or court rule “shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”

The amendment also would require that officials offer a written explanation whenever they close a meeting. The explanation would need to demonstrate “the interest protected by the limitation and the need for protecting that interest.”

Sponsors hope that putting the language in the state Constitution also would encourage the public to be more demanding of government officials.

“[T]he biggest impact of SCA 1 may be cultural,” Newton and Francke wrote in an article for the CNPA’s house organ. “Establishing a constitutional right of access will make the public more assertive in seeking public records and open meetings and will make public officials less secure in asserting expansive policies that close the doors of government.”

There would be no fines or criminal charges for those who violate the “Constitutional Sunshine Amendment.”

SCA 1 has survived four legislative committees and one floor hearing without an opposition vote. The next test will come in the Assembly Elections, Redistricting and Constitutional Amendments Committee. A hearing date has not been set.

If the measure passes the committee and is approved by at least a two-thirds majority of the Assembly, it will go before the voters next year on the same ballot as the presidential primaries.

“I think the likelihood is pretty good [that it will be adopted],” Newton said. “It’s never had a ‘no’ vote.”