Nebraska: Judiciary Operates in Secret, Refuses Legislature’s Desire for Openness

December 7, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Many times I’ve inveighed against the secrecy in which certain public institutions cloak themselves. Usually my comments are directed at a state child welfare agency because it’s painfully obvious that the secrecy in which those organizations operate serves first and foremost to prevent public awareness of agency malfeasance. Time and again we see caseworkers either overreacting or under-reacting to some allegation of child endangerment. A child, known by CPS to be at risk of harm ends up dead because of agency inaction or a child is taken from parents despite being in no danger. Omaree Varela was kicked to death by his mother, a serial abuser well known to Albuquerque CPS. Danielle and Alexander Meitiv’s children were held by the police and CPS incommunicado for hours without food despite the fact that they were in no danger whatsoever.

But those of course are the cases that have come to light. When they do, they reveal serious incompetence and/or bullying by CPS officials. No one knows the extent of the problems because CPS acts in secret.

But I’ve also written recently about the family courts in Nebraska that so far have resisted every effort to find out what they do in child custody and other cases. Indeed, the state legislature spent $150,000 to fund a study of the 2007 revisions to the state’s Parenting Act only to have the researchers inform them that the most important information – about child welfare pre- and post- 2007 – simply isn’t available.

One Nebraskan filed a lawsuit against the Administrator of the Courts for failure to provide information on child custody matters pursuant to a Freedom of Information Act Request. That same Administrator testified before a legislative committee in opposition to LB 27 earlier this year. LB 27 is a bill that would require parents or their attorneys to fill out a short form describing the outcome of their child custody case. That virtually cost-free way of maintaining public information on what judges actually do with the state’s children looks to many like the most basic common sense. After all, why shouldn’t the people of Nebraska know what the judges they pay to act in the best interests of children are up to?

But neither the Administrator of the Courts, Corey Steel, nor the judges themselves are at all enthusiastic about the people knowing even that basic information.

I think I know why. Two years ago, the results of another study of the Parenting Act pre- and post- 2007 were made public and they were none too flattering to judges ruling in child custody cases. Not only are those judges’ rulings utterly inconsistent, the study strongly suggested that the 2007 reforms had had no measurable effect on how judges ruled. Put simply, a parent seeking joint custody of a child had a vastly poorer chance of prevailing in certain rural counties than they did in Omaha.

That said, judges rarely ordered equal parenting or anything close to it, regardless of where their courtrooms were located. That was true before the effective date of the 2007 revisions as well as afterward despite the wording of the new law that seemed to many to encourage equal parenting. In short, what evidence Nebraskans have strongly suggests a statewide judicial tendency to ignore the intent of the legislature when it comes to parenting time.

So, instead of mending their ways, the state judiciary seems to be doubling down on secrecy. A little information proved embarrassing, so they seem determined to keep all further facts about their rulings under wraps. Amazingly, the judges not only want to keep Nebraska’s citizenry in the dark, they also refuse to provide the Legislature any information.

All of that has Ray Keiser in a bad mood. Here’s his op-ed (Lincoln Journal Star, 12/6/15).

In recent months, it has become clear that our state judicial system has a secrecy problem. Last month, Legislative leaders announced plans to remove judicial branch responsibility for juvenile justice, probation and all other programs except those relating directly to operations of the courts.

The Legislature took this action in part because judicial branch officials have blocked Legislative access to information about juvenile offenders and programs, saying that providing such information would jeopardize the independence of the courts.

In October, the State Court Administrator released the results of a two-year, $150,000 study that tried to determine whether recent amendments to the Nebraska Parenting Act were accomplishing their intended results. Unfortunately, the study “could not draw any conclusions about the 2007 Parenting Act revisions’ impact on child well-being” because of a lack of data.

This led the study’s authors to recommend the collection of more and better data about Parenting Act cases. This recommendation was interesting because a few months earlier the State Court Administrator lobbied against a legislative bill, LB27, that would collect additional data about Parenting Act cases.

Yes, it seems it’s not just Keiser. The Nebraska Legislature seems unhappy at being told by the judges that what they’re doing is none of the legislative branch’s business. Truly, the arrogance of the judicial branch seems to know no bounds. Explaining why the courts refused to produce even the most mundane of information, Steel had this to say:

“Every court has power over its own records and files even if the Nebraska Public Records Act applies to certain judicial records.” The Court Administrator refused to disclose any documents, even those that had not been created by judges.

Hmm. Even if that’s correct, even if the judiciary is entirely exempt from the Nebraska Public Records Act, which I doubt, so what? Why not turn the information over anyway? This is not a matter of national security. It’s nothing more than allowing the legislative branch to know what the judicial branch is doing and whether there needs to be additional legislation making the intent of the legislature clearer than it is now. In other words, the legislature may need to enact an explicit shared parenting bill in order to get the courts to finally do what they should have been doing since January 1, 2008, the effective date of the 2007b revisions.

It is beyond outrageous that the legislature should be forced to function in the dark simply because judges are afraid that public knowledge of their behavior might redound to their detriment. How are lawmakers supposed to know if the bills they pass are having any effect if the courts won’t divulge how they’re interpreting those bills? Apparently, they’re supposed to pass laws on shared parenting and then guess at whether the judges are implementing them.

Ray Keiser has some better ideas.

What can be done if the judicial branch continues to resist transparency and accountability mechanisms that apply to the other branches of government? The Legislature’s decision to strip the judicial branch of all responsibilities except core judicial functions is a good start, but it’s probably not enough.

The Legislature should also cut the remaining budget of the judicial branch. The Legislature can’t reduce judges’ salaries but it can freeze them. The Legislature can also reduce non-judge staff and reduce other non-staff expenditures like travel, entertainment and conferences.

These budget reductions would be welcome as the Legislature struggles to address a projected $140 million budget deficit. This would also make sense operationally because, after the non-core functions are removed, the judicial branch won’t need as many administrative personnel to supervise its significantly reduced responsibilities.

The judicial branch also has several revenue streams, such as the Parenting Act fund, that are not subject to regular Legislative oversight. The Legislature should move these hidden funds back into the general fund to ensure these funds are spent lawfully and transparently.

Interesting ideas. Start to take away the judiciary’s money and then see if judges don’t discover a newfound zeal for transparency.

Here’s another idea. Long ago the judiciary decided to give its members absolute immunity from civil lawsuits for all actions taken pursuant to the job of a judge. All other public officials, like the police, have only qualified immunity. That means that no civil suit against a Nebraska judge will survive a motion to dismiss. But other officials can be sued if their actions are at odds with known, established law or the practice or policies of their particular agency.

Why judges should be held to a lower standard than, say, a cop on the beat or a CPS caseworker, is anyone’s guess. I suppose the judges don’t have a very high opinion of their own competency. But the legislature can act any time to strip them of the absolute immunity they’ve so generously granted themselves and provide them the lesser immunity with which everyone else in government must be content.

Whatever the case, someone in Nebraska with the power to do so needs to teach those judges a painful lesson. The people of the state and their elected representatives need to know what judges are doing. If that proposition is threatening to the judiciary, it’s plainly time they found other jobs and those more amenable to the will of the people hired to replace them.


National Parents Organization is a Shared Parenting Organization

National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

#Nebraska, #familycourts, #secrecy, #freedomofinformation

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