Bureaucrats continue to stonewall judges with new tactics

Posted on October 3, 2012

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October 2, 2012

Dear Members and others,

We write to alert you to a disturbing policy recently implemented by Branch leadership.

As you know, since the Alliance formed we have taken the position that the public’s business should be conducted publicly and transparently and that the decisions on how public dollars are spent should likewise be open and transparent.

That is why the Alliance supported the Bureau of State Audits report on the wasteful CCMS project. That is why the Alliance participated in legislative hearings that revealed wasteful spending on courthouse maintenance projects.That is why the Alliance blew the whistle on the pension giveaways enjoyed by the top 30 AOC bureaucrats. And that is why the Alliance – backed bill to restrain the Judicial Council from raiding the Trial Court Trust Fund was so essential.

You need to know that the Alliance regularly requests information from the Administrative Office of the Courts. We do this because a hand picked Judicial Council has proven itself incapable of properly overseeing the actions of the AOC. We believe that every judge has a responsibility to inform themselves of how our branch leaders are spending public dollars in light of the fact that valuable court employees are being laid off and courthouse hours of operations curtailed.

We attach for your information a letter sent on September 10th by former Alliance director and retired Los Angeles County Superior Court Judge Charles Horan to the Chief Justice and cc’d to various branch leaders and staff. Judge Horan lays out in detail the disparate treatment being meted out to Alliance members who are requesting information about the activities of the AOC and Council. To date, the Chief Justice has not responded. If and when she does, we will provide you with the response.

Directors, Alliance of California Judges
__________________________________________________________________________

September 10, 2012
Dear Chief Justice Cantil-Sakauye:
Over the years, I have made a number of requests for information from the AOC and/or
Judicial Council. All have been handled by email without that mode of communication
causing any difficulty for either party.

Recently, things have changed rather drastically. Suddenly, information requests that
the AOC believes do not fall within Rule 10.500 are immediately sent to Justice Harry
Hull for his handling. This includes even the most mundane, non-controversial requests.
Also, Justice Hull apparently sits as a de facto appellate arbiter of requests under Rule
10.500 that have been denied in whole or in part by the AOC, and those that the AOC
simply does not care to deal with.

Justice Hull, having been somehow insinuated into the process, has instituted his own
rules. He requires that any request thus forwarded to him by the AOC be resent to
him–only via US mail–by the requester, and that all further correspondence be between
him and the requester, and likewise be by U.S. mail. This is supposedly to insure an
“accurate record of the communications.” We all know, or should by now, that email
provides an everlasting and wholly accurate record for both sender and recipient. U.S.
mail is slow, and provides no verifiable record at all. Justice Hull’s only stated reason
for insisting on U.S. mail is not grounded in this reality, and his practice is apparently
due to something else altogether.

Oddly, this situation seems to exist only with judges identified with the Alliance of
California Judges. I, for example, am a former director of that organization. I have
spoken to the current directors of the Alliance about this, and they have also suddenly,
and for the first time, had their information requests referred to Justice Hull. We know of
no other judge or justice who has the burden of going through this process.

Last week I sent a three line email to Chad Finke of the AOC that simply sought to
determine whether the AOC would reimburse appellate justices and/or trial court judges
for attending the upcoming CJA conference, and if so, who had authorized this. Rather
than simply answering the question (though his office will reportedly handle the
reimbursements) Mr. Finke refused, referring the matter to Justice Hull. My dealings
with Mr. Finke have always been cordial. I do not imagine that Mr. Finke has taken it
upon himself to unilaterally change AOC policy–or his own formerly well-documented
and normally cooperative practices–toward only certain judges. I imagine Mr. Finke is
simply following orders. I mention this instance only to show you how petty and
ridiculous the situation has become. My request to Mr. Finke was obviously an
appropriate one, but even that simple request has been shunted to Justice Hull, who
will, if things don’t change, insist on a plodding course of U.S. mail exchange obviously
designed to make it more difficult for certain judges to obtain needed information in a
timely fashion.

Mr. Finke has also lately refused to turn over employee personnel information of the sort
routinely revealed in the past, and clearly nonexempt under Rule 10.500. For example,
the AOC has already revealed that 5 individuals were promoted at the AOC in the past
few months, including one from the OGC. Mr. Finke refuses to divulge their names,
claiming that this is personal, private information. (Under that rationale, the public
would presumably have no right to even know that Ms. Patel and Mr. Child were
recently promoted, I suppose.) In contrast to his denial of my request, recently the AOC
obligingly released a list of roughly 100 AOC telecommuting employees to the press–all
employees identified by name.

Even more disturbingly, the clear policy of disadvantaging certain requesters seems to
be tacitly endorsed and followed by the Council. On 9/2/12 I sent an email note to
Justice Miller asking about the meaning of a particular motion re: the SEC report made
at the 8/31/12 Council meeting. I sent my request for clarification of the motion to
Justice Miller because he is the chair of the Executive and Planning Committee, which
is responsible for the SEC report and implementation process. Justice Miller did not
respond, and instead I received a letter from Justice Hull of the Rules Committee by
U.S. mail informing me that Justice Miller had referred the question to him. Justice Hull
asked that I mail him the question again, with my signature, and he would consider it.
This instance is but one of the latest examples that I, and others, have been singled out
for special treatment and retaliation. Justice Hull has no known authority or duty to deal
with information requests, and no particularized knowledge making him a logical choice
to handle all such matters, and certainly not the matters I have inquired about. Further,
the Judicial Council website states clearly that information requests can be filed by fax,
U.S. mail, or email. Furthermore, the AOC, Council, and Court of Appeal all provide a
fillable form for those who wish to use email, though its use is not required. This
information can be viewed at http://www.courts.ca.gov/publicrecords.htm.

It is obvious that Justice Hull has been personally assigned to me, and to the current
directors of the Alliance of California Judges, regardless of the nature of the request,
and regardless of who might actually have the information to answer it. It appears to
me and others that a high-level decision has been made to make life difficult for anyone
affiliated with the Alliance of California Judges when it comes to these requests. This
suggests a personal embroilment quite incompatible with fairness, and is quite
unprecedented. For example, when Justice Huffman–certainly no fan of the ACJ–
headed the Executive and Planning Committee, we were always able to communicate
by email, and to his credit, Justice Huffman always answered questions on his own
when he had the information. The recent conduct of Justice Hull, Justice Miller and the
AOC represents a step backward.

Chief Justice, I ask that this unfair policy immediately be revoked, regardless of who
originated it. I have already asked Justice Hull to cease his unreasonable practice of
requiring U.S. mail correspondence only–please see my email sent to him this date
which is set forth in full at the end of this email. The practice he has instituted violates
the spirit of Rule 10.500, which, among other things, specifically requires that
information be provided in electronic form when it exists in that form. It further violates
that rule’s express policy that no unnecessary action be taken to delay requests, and
the provision requiring that the rule be construed broadly to provide maximum access.
Most of all, it violates the often repeated promise of AOC and Council transparency and
openness.

I further ask you to remind the Office of General Counsel that Rule 10.500 is mandatory
rather than directory, and carries the force of law. Please also ask that OGC and others
consider that Rule 10.500 constitutes a floor, not a ceiling–the Rule itself provides that
the AOC is free to provide even greater access that that mandated by the rule. This is
equally true of requests made to, or handled by, the Judicial Council.

Information requests in the past have revealed numerous questionable AOC practices–
faux “hiring freezes”; the larding on of temporary employees to disguise hiring during
supposed freezes and to deflate publicly released employee numbers; violations of
existing personnel policies; unusual hiring practices relating to the OGC; inaccurate
reporting of data to the public and to the legislature re: the CCMS project; the failure to
accurately report work force numbers to the public; and a host of others. Many of these
matters found their way into the SEC report, as did the very great difficulty encountered
by the SEC committee itself when trying to obtain information from the AOC during its
55 week investigation. Certainly the revelation of certain information has been
embarrassing to the AOC and to some Council members, but this is no excuse to
stonewall information requests. The solution to bad publicity is not the hiding of
information.

On August 31, 2012, Justice Corrigan pointed out quite eloquently and correctly the
need for transparency, openness, communication and cooperation. She asked us all to
“resolve to work together as partners rather than fight as adversaries.” Today, Council
member Judge David Rosenberg publicly asked that all judges with complaints about
governance issues bring them directly the Council. Additionally, the Council recently
unanimously passed policies making it clear that the Council is under a duty to oversee
the actions of the AOC. I ask that you, as Chair of the Council, take steps to see that
the AOC and all members of the Council immediately and positively cooperate with
judges making legitimate and good faith requests for information rather than setting up
apparent discriminatory stumbling blocks.

In the short term, I ask that Justice Hull either forego handling information requests, or
that he handle only those appropriately within his purview, and without imposing
arbitrary and unnecessary new rules of his own. In the long term, I suggest training for
AOC employees as to Rule 10.500, and the case law interpreting its sister statutes, the
California Public Records Act and the Legislative Open Records Act, both of which are
referred to in the Rule as benchmarks for its interpretation.

I do not speak for the Alliance of California judges, but I am fairly confident that any
difficulties that exist vis a vis information requests can be worked out if good judgment
prevails over emotion. I would be more than happy to talk to Justice Miller, Justice Hull,
or anyone else you suggest about such a resolution. However, the current situation is
simply not tolerable.

Thank you.
Charles Horan
Judge, Ret.

Cc:Hon. Douglas P. Miller
Hon. Harry Hull
Ms. Jody Patel
Mr. Chad Finke
Hon. Steven Jahr, Ret.
Mary Roberts
Justice Carol Corrigan
Directors, Alliance of California Judges
_____________________________________________
_____________________________________________
September 10, 2012
Dear Justice Hull:
I have received your letter of 9/4/12. I repeat it verbatim here, in case you don’t have a
copy handy.
___________________
September 4, 2012
Dear Judge Horan:
It is my understanding that you have made a further informal request to Chad Finke for
information relating to AOC promotions in the last fiscal year.

It is also my understanding that on Sunday, September 2 you made an informal request
for information to Justice Doug Miller relating to the actions the Judicial Council took last
week in approving and implementing the recommendations of the Executive and
Planning Committee which dealt with the reorganization of the AOC.
Those requests have been referred to me.

So that I have an exact record of the details of your requests, would you be good
enough to send me a letter over your signature setting forth the information you are
asking for? I can then consider a response to your inquiries.

In the meantime, the report of the Judicial Council’s action last week relating to
restructuring of the AOC can be found at: http://www.courts.ca.gov/a8841.htm

And the powerpoint presentation used at the Judicial Council meeting as it relates to a
restructuring of the organizational chart of the Administrative Office of the Courts can be
found at: http://www.courts.ca.gov/documents/council proposedAOCOrg.pdf

I might also note that, to the extent you are interested in requesting documents relating
to these subjects, the procedure for doing so may be found at the following website:
http://www.courts.ca.gov/publicrecords.htm
Thank you.
Harry E. Hull, Jr.
____________________
Justice Hull, I have already made my requests for this information via emails to Mr.
Finke and to Justice Miller. The Judicial Council website specifically and unequivocally
allows all information requests to be made by FAX, Email, or U.S. mail. In fact, it
doesn’t even foreclose telephonic requests, and simply notes that requests in formats
other than the three listed may cause delay. That information can be found at http://
http://www.courts.ca.gov/publicrecords.htm.

It is unreasonable for you to require that I make the requests again to you, via U.S. mail,
simply because it has been decided (by someone) that you will handle my requests and,
apparently, those of all individuals you perceive are affiliated with the Alliance of
California Judges. Further, you obviously already have the requests you now insist that
I mail to you, as your letter above fairly accurately summarizes their contents. Of
course, if you have misplaced or deleted the emails forwarded to you by Justice Miller
and Mr. Finke, I would be more than happy to resend those emails to you immediately. I
do not intend to type them out again and mail them to you when no rule or policy
requires it, save yours.

I have never met you, Justice Hull. I have never made an unreasonable or burdensome
request for information from the AOC or Council, and I don’t believe anyone will claim
otherwise. Your continued insistence, which began some weeks ago, of requiring U.S.
mail correspondence between us as to all information requests you have taken it upon
yourself to handle, so that you “may have an accurate record” of that correspondence,
is frankly insulting. If I have done something to cause you to believe I am not to be
trusted, please say so. Otherwise, I ask to be treated with the respect you would show
to any other colleague.

If you are truly concerned with an “accurate record” of the correspondence, I point out
again to you that electronic mail is quick, accurate, and leaves an absolutely
unquestioned record of the correspondence, for both sender and receiver, while U.S.
mail does not. Your practice seems more designed to ensure delay and to make it
unreasonably difficult for judges and others to obtain simple information, and to
disseminate it to others. This will certainly do little to ease tensions and foster future
cooperation and, respectfully, is not a wise use of your authority. I ask again that you
reconsider your practice.

On another point: On 9/5/12 I sent an email to Mr. Finke. Here it is in its entirety:
“I have been told that the AOC will reimburse for up to $300 for appellate justices to
attend the next CJA conference. Is that true? Is AOC also reimbursing for judges?
Was this a decision of the Chief Justice, AOC, or…?
CH”

I immediately received this response from Mr. Finke:

Judge Horan,
In that your request is not seeking judicial administrative records, I am referring it to
Justice Hull for consideration.
Thanks,
Chad

If you follow your now-established policy of writing me a letter requiring me to restate
my question via U.S. mail to you, and then send your eventual response via U.S. mail, a
three week or more process will have been undertaken, all quite needlessly. The
information sought could and should have been quickly imparted via email to me by Mr.
Finke in the first instance, and would have been, had the request been made by anyone
not publicly identified with the Alliance. You and I both know that. The question was
properly directed to Mr. Finke, whose office will handle the reimbursement requests for
the CJA meeting. Additionally, Mr. Finke handles most, if not all, information requests
for the AOC. There can be no question but that the request was a proper one. The
AOC’s refusal to answer such a simple question appears to me to be stonewalling, plain
and simple. You should not enable or assist the AOC in this sort of obfuscation by
allowing them to forward such requests to you for your special form of handling.
Again, I object to the unwieldy and unfair process that has been instituted for me and
apparently also for others affiliated with the Alliance of California Judges. This smacks
of retaliation for speaking out, and sharing information–often obtained through the very
process under discussion–with our fellow judges and others.
Thank you.

Charles Horan
Judge, Ret.

Cc: Ms. Jody Patel
Mr. Chad Finke
Hon. Douglas P. Miller