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December 12, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Recall from yesterday that the lawyers for the State Court Administrator, Corey Steel, led their brief with what is quite possibly the worst legal argument I’ve ever encountered. (Recall as well that I’ve recently written about a lawyer for the State of California arguing to an appellate court that a caseworker for CPS couldn’t have known that committing perjury was wrong. The Nebraska argument was worse than that.)

Steel’s lawyers are trying to shield from public view the materials used to train family court judges in the social science relating to parenting time and children’s welfare. They’re doing this despite a state statute that is both clear about the legislature’s intention to inform the public about what its officials are doing and broad in its scope.

As I said yesterday, only another statute that expressly so states can remove documents from the ambit of the Nebraska Public Records Statutes (NPRS). Steel’s lawyers admit that there is no such statute regarding judicial training materials, but then turn around and claim that a rule that could have been passed by a non-legislative committee, but wasn’t, in some way constitutes a statute that shields those materials from disclosure. On its face, the argument is nonsense. From yesterday’s post, here’s my best shot at describing it:

The theory offered up by Steel’s lawyers is that a committee, that has no power to pass a statute, could have promulgated a rule, but hasn’t done so and that failure to promulgate a non-statute is in fact a statute, exempting the records not covered by the non-statute from disclosure under the exception for statutes that prohibit disclosure.

It’s confusing, I know, but it’s the best I could do. As is so often the case, it gets worse.

Perhaps vaguely aware that the argument they’re making is absurd, the lawyers try to recruit the Nebraska Supreme Court to their cause. I suppose the thinking is that, since the case is now before the Supreme Court, if they can convince the justices that they’re actually on Steel’s side, then maybe he’ll get some sympathy. Who knows?

Again, bear with me. The argument not only doesn’t get any better, it actually becomes harder to understand.

Steel’s lawyers say that Nebraskan’s aren’t entitled to know what’s in the judicial training materials because something that doesn’t exist and, even if it did, would be a rule, not a statute, actually constitutes a statute. What’s more, they say that, because the Judicial Branch Education Advisory Committee has never made those documents public, it shouldn’t have to do so now.

[I]n accordance with the Committee's and this Court's policy regarding the confidentiality of JBE materials, both the Office of JBE and the Office of the State Court Administrator, respectively, have treated JBE records as confidential and not subject to release to third parties.

Stated another way, because the Committee has always violated the NPRS, it should be allowed to continue to do so. I’m sure Tony Soprano would love that concept. “Hey, I’ve killed before, so that gives me a pass to keep killing, capiche?”

To sum up, the lawyers argue that a non-statute that’s never been passed actually is a statute that has been passed and, absent any verbiage, it nevertheless means that the plain intention of the legislature and the law it passed should be thwarted. This is so because prior violations of the NPRS should allow future violations of the NPRS. I need to sit down; I’m dizzy.

And, as I mentioned yesterday, that’s Steel’s best argument. Really.

His other two arguments find no support in case or statute law. Briefly, Steel’s lawyers claim that the power to keep judicial training materials from the public, despite the plain mandate of the NPRS, is an inherent power of the judiciary. That is, the doctrine of the separation of powers of government prohibits the legislative branch from ordering the judicial branch to turn over records. To put it mildly, that just doesn’t make sense. It asserts that the legislature has no power over the judiciary, that the laws it passes don’t apply to the judiciary if the judiciary doesn’t want them to. It’s a proposition that, as far as I know, has never been asserted, much less countenanced, anywhere any time.

I wonder if Steel’s lawyers would also argue the converse – that the judiciary has no power over the legislature, that a legislator who commits a crime can’t be punished by the judiciary due to the doctrine of the separation of state powers. The idea is absurd.

Steel finally claims that the public doesn’t get to know how its judges are trained because information impacting the “deliberative process” of judges is beyond the scope of the NPRS. Now, it’s true that documents that bear directly on a judge’s decision-making process in a particular case can be shielded from publication. As far as it goes, it’s a sensible enough rule. While a judge is deciding how to rule in a case, it may be inappropriate for, say, the newspapers to get copies of the documents produced in the case in order to begin public lobbying for a particular outcome.

Needless to say, there’s a world of difference between what’s generally taught to judges and makes up their general background of knowledge, and items specific to individual cases. Dr. Veskrna’s lawyer makes the matter plain in his brief to the Court.

The Appellant, in his letter to the Appellee denying access to the requested documents, asserted that 'Judicial education is closely intertwined with the deliberative and decision-making process employed by a judge in fulfilling his or her duty to independently decide legal cases." (T8) Respectfully, this assertion is nonsense. While certainly important to the ongoing education of the judiciary, these continuing education programs are not directly related to the actual decision-making process of a judge in a particular case. Documents related to such continuing education programs are neither deliberative nor predecisional under any recognized definition of the terms as they relate to the deliberative process privilege, and to pretend otherwise is a legal fiction.

Yes, I’d say terms like “nonsense” and “legal fiction” about sum it up.

Absurd as the appellant’s arguments are, we should not lose sight of the fact that this is a vitally important case. The idea that judicial training will remain secret from the people of the State of Nebraska is an outrageous assertion of power, one never conceived of by the legislature. By contrast, public access to those documents will open up a powerful line of attack in the ongoing fight to keep fathers involved in their children’s lives post-divorce. Once it’s revealed that judges are receiving the wrong information, the fight to bring them the right information can begin. And once judges are provided the overwhelming weight of social science that demonstrates the value to kids of equal parenting, I suspect we’ll see custody and parenting time rulings becoming more just and more in the interests of children.

That said, the Nebraska Supreme Court is no friend of shared parenting and the justices well know the consequences of ruling that the documents are open to the public.

I’ll keep you posted.

 

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