June 8, 2018 by Robert Franklin, Member, Board of Directors, National Parents Organization
The judiciary of Nebraska is at it again. Readers will recall that, earlier this year, the Judicial Branch Education Advisory Committee published proposed amendments to existing rules regarding the public’s access to training materials used to educate judges. In a nutshell, the JBEAC wanted the records of judicial training to be kept secret from the public that pays for those materials, the judges’ salaries, their courtrooms and courtroom personnel, etc. That of course was in response to a lawsuit brought by Dr. Les Veskrna seeking the release of judicial training materials to the public. His suit was successful and the public was duly apprised of the misleading and sometimes outright false “information” that had been presented to family court judges on the issue of the best interests of children as it relates to child custody and parenting time orders.
Not satisfied with the various court rulings requiring publication of judicial training materials, the judiciary sought to change the rules. They sought to send those materials underground again, far from the prying eyes of We the People.
As is required, the proposed rule changes were posted for public commentary until March 1 of this year. Reading between the lines, my guess is that commentary was none too favorable to the rule of secrecy so beloved of Nebraska judges. So now they’re trying again. Here’s the Nebraska Supreme Court’s preamble to the proposed new rules.
On January 19, 2018, the Judicial Branch Education Advisory Committee submitted to the Nebraska Supreme Court proposed rules governing public access to Judicial Branch Education records. The Supreme Court published the proposed rules for a public comment period which ended on March 1, 2018. Thereafter, the Nebraska Supreme Court directed further amendments to Neb. Ct. R. §§ 1-501 and 1-513 be published for an additional public comment period.
In short, the Supreme Court is seeking another bite at the apple. For readers of this blog, the salient feature appears here under records that must be made public:
(4) Records showing the content of education or training programs or presentations given by outside or private presenters, including all handouts, presentations, and recordings, except such portions of any recordings governed by subsection (C)(7) below, and as long as express written consent is granted by the author for the release of the materials.
I don’t know who they think they’re fooling. Making publication of training materials subject to the approval of the presenter, author, etc. is nothing but a transparent dodge. The public’s right to know should never be made subject to the whims of a single private person. Indeed, that very issue was addressed by the Washington, D.C. law firm Arnold & Porter in its response to the original Nebraska proposal.
It goes without saying that a third party should not be able to infringe another person’s Constitutional rights.
Well, when it comes to the Nebraska judiciary and the secrecy in which it wishes to operate, nothing “goes without saying.” Still Arnold & Porter makes an important point – the secrecy sought by the Nebraska judiciary implicates the constitutional rights of all Nebraskans, specifically due process of law.
The disdain in which Nebraska’s judges hold the public is shocking to behold. The notion that Nebraskans shouldn’t be able to know what their judges are being taught is an outrage. It’s even more so since we now know that, under cover of that secrecy, what they were being taught about child custody and parenting time not only contradicts existing science, but disserves those parents and children who had the misfortune to rely on family court judges to get those matters right.
Back when Dr. Veskrna sued the state for the release of those training materials, the defendant – the Administrator of State Courts made no showing of any reason justifying secrecy. Indeed his claims were disposed of by the trial, appellate and Supreme courts using language that left no doubt about the weakness of his arguments. Since then, no one has come up with anything better.
Why then do we need to continue fighting this fight? The arguments on both sides have been made and those promoting secrecy have lost, as well they might. There is literally no sound argument in favor of secrecy. This second attempt to deny to Nebraskans basic knowledge of what their paid officials are up to is as entirely lacking in merit as was the first one.
In the event this proposed rule should pass, there will unquestionably be a lawsuit challenging it. In the meantime, the final day for comment is July 16.
Anyone desiring to comment on the proposed rules and amendments should do so in writing to the office of the Clerk of the Supreme Court and Court of Appeals, P.O. Box 98910, Lincoln, Nebraska 68509-8910, or via e-mail to wendy.wussow@nebraska.gov, no later than July 16, 2018.