As Transparent As An Iron Curtain

Posted on May 6, 2013

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May 6, 2013

Dear Members and Others,

First, we apologize for the length of this communication. We deem it necessary, however, to place in context what has become the standard operating procedure by branch leaders to refuse to disclose public information. In particular, reasonable requests for information from judges associated with the Alliance have been treated in a manner that directly contradicts their claims of a new era of greater transparency.

Like many of you we were hopeful that a new day would dawn upon the judicial branch with a change in leadership. For two solid years we were lectured to give the new regime “a chance.” During those two years we were told by branch leaders there would be a new paradigm wherein decisions would be made in a more transparent way, that input from all would be welcome, and that substantive changes would result in a Judicial Council committed to properly overseeing the vast Administrative Office of the Courts in an accountable and transparent manner.

To support these claims, a survey was commissioned by the then new Chief Justice which sought the input of all judges and justices on what was ailing the branch. The Chief Justice told media sources that she read every judge’s comments and, although she declined to make them public, numerous courts provided the media with what their judges had said in their surveys.

Subsequent to that survey, which revealed widespread dissatisfaction with the AOC and its purported overseer, the Judicial Council, the Chief Justice created a Strategic Evaluation Committee tasked with issuing a report that would be, in her words, “the Bible” for reorganizing and downsizing the central bureaucracy with an eye towards greater transparency and accountability of the Council and AOC.

These actions did not take place in a vacuum. In fact, it took legislative branch pressure in the form of a scathing audit by the State Auditor of the failed half a billion dollar CCMS project, the introduction of legislation sponsored by the Alliance of California Judges to rein in the out of control spending by central planners, disclosures of pension spikes for the top 30 paid AOC staffers, the uncovering of a telecommuting policy that allowed an AOC lawyer to live and work in Switzerland, the exposure of costly and wasteful maintenance and construction projects, including the now infamous “gum removal” project that cost in excess of $8,000 dollars, the embarrassing disclosure of $200 light bulb replacements and the one-sided “public/private” deal to build a courthouse in Long Beach which has put a halt to at least 11 critical building projects because of its over-the-top long term costs.

Please know that virtually every one of the aforementioned boondoggles would not have been uncovered without the tenacity and courage of the media, legislature, the State Auditor and the Alliance of California Judges. In each instance the new regime cried foul and refused to take responsibility for its actions. Our leaders, citing the separation of powers, angrily reacted that legislators had no right to demand that former AOC director William Vickrey be fired over his mismanagement of this state’s most costly failed computer project. In fact, the new regime responded by renaming the Judicial Council’s meeting room after this publicly disgraced employee.

Legislators who supported the Alliance backed bill, AB 1208, were accused of being uninformed and dishonest in a video which featured the Chief Justice. The respected State Auditor was also verbally attacked and her character impugned by the chair of the Council’s CCMS Committee, who first pronounced that not all of the Auditor’s recommendations would be implemented and then, within 48 hours, changed course to proclaim that all findings would be acted upon. That same committee chairman was recently praised by name for work he did on CCMS during the Chief Justice’s State of the Judiciary Speech which she gave to a combined session of the State Assembly and Senate. When the Chief Justice received the report from her handpicked Strategic Evaluation Committee, her first response was to tape a video message to AOC staff directing them to point out errors in what can only be described as a devastating indictment of AOC mismanagement and a failure of the Judicial Council to oversee its operations. Wow.

Obtaining information from the new regime has not only been difficult for the Alliance but has been documented by others, most recently the Chief Justice’s own Strategic Evaluation Committee, the respected State Auditor, and members of the media.

Which brings us to the following disturbing actions by the same branch leaders who on a regular basis tout transparency and accountability. Over the last year, efforts by the Alliance to obtain public records from the AOC have been routinely ignored, denied, delayed, and in many instances forwarded to the Council’s Chairman of the Rules and Procedure Committee, Justice Harry Hull, where they languish without a response. In fact, Justice Hull has insisted that any request be sent to him via the United States Postal Service. Perhaps if CCMS had actually worked the good Justice would have been satisfied with email, but alas we will never know.

How did this occur? That is an excellent question and one we are unable to answer because of a refusal on the part of branch leaders to disclose what apparently was decided behind closed doors. One thing we can point to is an apparent complaint by AOC staff that Alliance requests have become “burdensome” or troublesome.”

We attach as an example a recent request by retired Los Angeles Superior Court Judge and Alliance member Chuck Horan, along with the response from the AOC which highlights how far our leaders are prepared to go to deny the Alliance relevant and easily retrievable information. As painful as this might be, please take the time to review the entire email exchange that appears below.

The practice of hiding behind a tortured reading of Rule 10.500 of the Rules of Court, the attorney client privilege, and the catchall that the AOC does not maintain records that are easily retrievable is the very antithesis of “transparency” and “accountability.” In fact, it is an assault on the basic notion of open government that as Americans we expect of those who are funded by public dollars.

At this point, the Alliance is exploring various options to obtain these public records. We would hope that branch leaders would voluntarily disclose and cooperate with these requests, but if past actions are a predictor of future actions, no changes will be implemented.

We will continue to keep you updated regarding this issue. We also encourage you to make requests of the central planners for information concerning the expenditure of public funds. Remember, but for the ability to obtain these records we would never have learned the truth about the AOC’s faux hiring freeze and faux furlough policy, the real costs of CCMS, the Long Beach Courthouse debacle or the outrageous maintenance costs and pension spikes, just to name a few.

Directors,

Alliance of California Judges

————————————————

May 1, 2013

Dear Chief Justice, Justice Hull, Justice Miller, Mr. Jahr, and Mr. Finke:

At the end of this email is an information request I made on March 15, 2013.  Immediately above it is the response I received yesterday from Mr. Finke.

First, as to any claim of attorney-client privilege, I point out that no such claim would lie as to communications between, for example, the Chief Justice and Justice Hull.  Neither are attorneys, plain and simple.

Only communications between any of the named individuals (Chief Justice, Justice Hull, Justice Miller) and an AOC attorney made specifically for the purpose of seeking legal advice would arguably be covered, as would communications between (for example) the Chief Justice and Justice Hull which specifically discussed legal advice jointly given them.

The broad manner in which you (or the AOC) construe the attorney-client privilege would put beyond the reach of the public any document which passed between any AOC attorney and any member of the Council.

This is not a correct construction.  For example, my request (see #3) for materials presented to the Chief Justice by the AOC which dealt with the need for the interim policy would include information requests which were publicly proclaimed by various members of the Council to have been burdensome.  These cannot possibly be privileged as they were not generated by the AOC attorneys or any party to this email.  Further, any privilege would seem to have been waived.  I understand the reluctance in turning over emails, especially since it would appear that contrary to the statements made that ACJ requests were somehow inappropriate, the AOC has failed to identify a single such request.

Finally, insofar as any of you still maintain that the attorney-client privilege allows you to withhold the records I have requested, I ask that you each waive the privilege.

Lastly, I write to complain that the policy recently enacted by unanimous vote of the Council is apparently being routinely flouted by Justice Hull, who refuses to respond to requests forwarded to him by the AOC.  Several of my requests have gone that route, as Judge Jahr knows, and Justice Hull has yet to even acknowledge them.  I have asked Judge Jahr for his help in this matter, to no avail, so I repeat it here.

Thank you.

Charles Horan

Judge, Ret.

___________________________

Judge Horan,

Our responses to your March 15, 2013, request for judicial administrative records are set forth below in red font.  We have repeated each request immediately before the corresponding response for ease of reference.

1.  A copy of the “interim process” adopted by the Chief Justice, together with any an all memoranda, emails and other writings which memorialize the adoption or institution of this process, and all writings dealing with the “interim process”  and which were created in the two weeks prior to the enactment of the “interim process” by the Chief Justice, and which were authored by the Chief Justice, any AOC employee, Justice Miller, Justice Hull, or any employee of the Supreme Court.

All judicial administrative records responsive to this request are subject to the attorney-client privilege and thus exempt from disclosure under 10.500(f)(5).

2.  The authority upon which the Chief Justice purported to act in adopting the “interim process” for the AOC to follow.

This request is seeking information not contained in judicial administrative records.  Therefore, under AOC Policy 2.8 (Responding to Requests for Judicial Administrative Records and Information), which the council approved in December 2012, we are referring your question to Justice Harry Hull for consideration.

3.  Any and all materials presented to the Chief Justice by the AOC, in the month prior to her adoption of this interim process, which dealt with the need for such a change in process.

All judicial administrative records responsive to this request are subject to the attorney-client privilege and thus exempt from disclosure under 10.500(f)(5).

4.  Any reports by the AOC purporting to demonstrate that AOC personnel had in fact spent “734.7 hours” in a two month period responding to Rule 10.500 requests (as reported to the Council in the full report which is excerpted below), and including any examples of burdensome or troublesome information requests that the AOC felt necessitated a change in policy or process.

Attached is a judicial administrative record responsive to the first part of your request.  The second part of your request—seeking “examples of burdensome or troublesome information requests that the AOC felt necessitated a change in policy or process”— incorrectly assumes that the AOC has characterized certain requests as “burdensome” or “troublesome” and that the development of policy 2.8 (Responding to Requests for Judicial Administrative Records and Information) was initiated by the AOC. Accordingly, the AOC does not have any judicial administrative records responsive to this request. The reasons set forth by AOC staff in its recommendation regarding AOC Policy 2.8, which the council approved in December 2012, are outlined in the council report available at this link: http://www.courts.ca.gov/documents/jc-20121214-itemX.pdf. The council report also includes examples of requests that led to the development of the new policy.

5.  All emails and other writing between the Chief Justice, Justice Miller, Justice Hull, Mr. Chad Finke, and any other AOC employees dealing with the formulation of or enactment of this “interim process” including emails or other correspondence between the Chief–who enacted the process–and AOC which instructed the AOC to follow the policy/process.

All judicial administrative records responsive to this request are subject to the attorney-client privilege and thus exempt from disclosure under 10.500(f)(5).

6.  The exact date the “interim process” was initiated.

The exact date the interim process was initiated is contained in a judicial administrative record that is subject to the attorney-client privilege and thus exempt from disclosure under 10.500(f)(5). The approximate date the interim process was initiated is set forth in the council report available at this link: http://www.courts.ca.gov/documents/jc-20121214-itemX.pdf.

7.  Any writing wherein the Council or Chief Justice or any other person in fact instructed AOC staff to “strictly construe the Rule” (10.500) as claimed by the AOC in the portion of the staff report set forth below.

 Judicial administrative records responsive to your request can be found at the following links: http://www.courts.ca.gov/documents/102811JCCAtranscript.pdf andhttp://www.courts.ca.gov/15847.htm.

8.  Any legal opinion which purported to justify any such directive–either in 2011 or in the Chief’s August 2012 “interim process”–re: the  “strict construction” of Rule 10500, notwithstanding that Rule 10.500(a)(2) specifically states that the rule must be “broadly construed to further the public’s right of access.”

 The AOC does not have any judicial administrative records responsive to this request.  Further, if the AOC had any responsive records, they would be subject to the attorney-privilege and thus exempt from disclosure under 10.500(f)(5).

9.  The manner in which the Chief Justice made Justice Hull her “designee” as set forth in the report excerpted below.

 All judicial administrative records responsive to this request are subject to the attorney-client privilege and thus exempt from disclosure under 10.500(f)(5).

Chad Finke
Director
Office of Appellate Court Services/Court Operations Special Services Office, Judicial and Court Operations Services Division
Judicial Council of California – Administrative Office of the Courts
455 Golden Gate Avenue
San Francisco, CA 94102-3688
415-865-8925, Fax 415-865-4329chad.finke@jud.ca.gov
www.courts.ca.gov

“Serving the courts for the benefit of all Californians.”

From: Finke, Chad

Sent: Friday, March 22, 2013 9:44 AM
To: ‘Charles Horan’
Cc: Pubinfo; Jahr, Steven
Subject: RE: Information Request

Judge Horan,

The AOC will review files for responsive records and determine if there are any applicable exemptions, and anticipates providing any discloseable judicial administrative records by approximately May 3, 2013.

-Chad

Chad Finke

Director
Court Operations Special Services Office, Judicial and Court Operations Services Division
Judicial Council of California – Administrative Office of the Courts
455 Golden Gate Avenue
San Francisco, CA 94102-3688
415-865-8925, Fax 415-865-4329chad.finke@jud.ca.gov
www.courts.ca.gov

“Serving the courts for the benefit of all Californians.”

From: Charles Horan

Sent: Friday, March 15, 2013 7:52 AM
To: Finke, Chad; Hull, Harry; Miller, Douglas P.; Cantil-Sakauye, Tani
Subject: Information Request

Dear Chief Justice Cantil-Sakauye, Justice Miller, Justice Hull, and Mr. Finke:

I reprint verbatim a portion of the AOC report to the Judicial Council dealing with information requests.  This report was provided as part of the agenda materials for the meeting of December 14, 2012 and can be found at  http://www.courts.ca.gov/documents/jc-20121214-itemX.pdf 

I request the following materials relative to this report:

1.  A copy of the “interim process” adopted by the Chief Justice, together with any an all memoranda, emails and other writings which memorialize the adoption or institution of this process, and all writings dealing with the “interim process”  and which were created in the two weeks prior to the enactment of the “interim process” by the Chief Justice, and which were authored by the Chief Justice, any AOC employee, Justice Miller, Justice Hull, or any employee of the Supreme Court.

2.  The authority upon which the Chief Justice purported to act in adopting the “interim process” for the AOC to follow.

3.  Any and all materials presented to the Chief Justice by the AOC, in the month prior to her adoption of this interim process, which dealt with the need for such a change in process.   

4.  Any reports by the AOC purporting to demonstrate that AOC personnel had in fact spent “734.7 hours” in a two month period responding to Rule 10.500 requests (as reported to the Council in the full report which is excerpted below), and including any examples of burdensome or troublesome information requests that the AOC felt necessitated a change in policy or process.

5.  All emails and other writing between the Chief Justice, Justice Miller, Justice Hull, Mr. Chad Finke, and any other AOC employees dealing with the formulation of or enactment of this “interim process” including emails or other correspondence between the Chief–who enacted the process–and AOC which instructed the AOC to follow the policy/process.

6.  The exact date the “interim process” was initiated.

7.  Any writing wherein the Council or Chief Justice or any other person in fact instructed AOC staff to “strictly construe the Rule” (10,500) as claimed by the AOC in the portion of the staff report set forth below.

8.  Any legal opinion which purported to justify any such directive–either in 2011 or in the Chief’s August 2012 “interim process”–re: the  “strict construction” of Rule 10500, notwithstanding that Rule 10.500(a)(2) specifically states that the rule must be “broadly construed to further the public’s right of access.”

9.  The manner in which the Chief Justice made Justice Hull her “designee” as set forth in the report excerpted below.

Sincerely,

Charles Horan

Judge, Ret.

______________________________________

A note from JCW: You’ll note the AOC has a new director and that expanding the amount of directors is the general direction the AOC is going in – while the SEC report called for their elimination. Now all they need is a classification and compensation study to reveal that they’ve properly restructured and are underpaid for the fine work they do…..