December 11, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Many readers will recall that, among the many forms of resistance to sensible family law reform put forth by the Nebraska legal establishment, we find the refusal of the State Court Administrator to produce to the public any information whatsoever about how family court judges are trained in the science of children’s well-being and child custody/parenting time.
Back in May of 2015, family court reform activist, Dr. Les Veskrna requested records reflecting that judicial training and was denied in every particular by Corey Steel, Administrator. Veskrna then sued Steel requesting that a trial court issue a Writ of Mandamus ordering Steel to produce the records. In due course, District Judge Susan Strong agreed that Nebraska open records laws required Steel to make public the records with the single exception of a personal email received by a judge. She also ordered Steel to pay Veskrna $32,000 in attorney’s fees. Steel appealed and oral arguments were recently heard by the state Supreme Court.
Accordingly, we now have the legal briefs showing the legal bases for the parties’ conflicting claims. Stated another way, we now know on what basis the State Court Administrator contends that Nebraska residents and taxpayers aren’t entitled to know what their judges are being taught.
And let’s not forget that this information may be vital to the public’s understanding of why family court judges rule as they do. Just three years ago, the state published its study of family court outcomes and the results were damning. Sole or primary custody is given to mothers all but invariably despite there being virtually no claims of unfitness or abuse levelled by mothers against fathers. And the amount of time fathers get with their kids is absurdly meager. They receive, on average, about 16% of the parenting time.
So inquiring minds want to know why Nebraska judges are so disposed against fathers and in favor of mothers. After all, the overwhelming weight of social science on children’s welfare as it relates to parenting time urges roughly equal time spent with Mom and Dad. Why are Nebraska judges issuing orders so dramatically at odds with the known science? A clue might well be found in what they’re being taught in their continuing education seminars. And of course, if those seminars are misleading judges, shouldn’t they be changed? Les Veskrna thinks so and so do I, as I’ve written many times.
But the importance of the content of those seminars is only one aspect of the matter. The other is that, apparently, the state’s unicameral legislature passed laws making it clear that the people of Nebraska have a right to know what their employees are up to. What’s referred to in the appellate briefs as the Nebraska Public Records Statutes look pretty unambiguous.
[P]ublic records shall include all records and documents, regardless of physical form, of or belonging to this state, any county, city, village, political subdivision, or tax-supported district in this state, or any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing.
It would be hard to imagine the Legislature casting its net much more widely than that. And of course every resident of Nebraska is entitled to see those records. That’s more or less the whole point of the public records statutes.
So Veskrna, being a citizen of the State of Nebraska, looks like someone who should be able to view the training materials for family court judges. Now, the legislature also provided 18 exceptions to its broad definition of public records, but no one claims that the information sought falls under one of those exceptions. But it also provided another broad exception:
Except when any other statute expressly provides that particular information or records shall not be made public…
So, if there’s a statute somewhere prohibiting the release of certain records held by the state, then those records fall outside of the general definition and therefore can’t be obtained by the public.
This is where Steel’s argument gets difficult to explain, not because it’s intellectually challenging, but because it is so frankly loony as to be incoherent. And that makes it hard to explain. Really, you should try it sometime. Here goes.
Lawyers for Steel argue that training materials for family court judges aren’t public records because they fall under that general exception to the statute. That is, there’s a “statute” that “expressly provides that particular information or records shall not be made public” regarding those training materials.
OK, which one?
Well, there is no such statute. Nothing on the Nebraska statute books exempts those documents from public disclosure. Undeterred however, Steel’s lawyers stumble on.
You see, there is a committee called the Judicial Branch Education Advisory Committee. It’s empowered to promulgate rules regarding the training of judges, their discipline, etc. In connection with that, the Committee is empowered to promulgate rules regarding confidentiality. The only problem for Steel’s lawyers is that it’s never done so. And of course, even if it had, the rule wouldn’t be a statute because only the Legislature can pass a statute and only the Governor can sign it into law and neither has done so. Still, Steel’s lawyers claim that a rule never promulgated by the Committee constitutes a statute.
Let me try to put that in a nutshell. 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. Understand?
Has any lawyer ever made a weaker argument? Ring up Guiness; this may be a record.
There’s more, and I’ll get to that tomorrow, but for now let me add one thing. Lawyers are taught to make their best argument first. That’s true in written briefs, oral argument, argument to a jury, argument to a judge. Put your best foot forward.
Well, what I described above was the first argument made by Steel’s lawyers. It’s their zinger. Really, their silver bullet argument is so incoherent and utterly at odds with reality that I had serious difficulty even describing it.
Stay tuned.
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