Nebraska Supreme Court Opts for Secrecy

September 30, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

To no one’s surprise, the Nebraska Supreme Court has done it. It’s produced a rule under which materials used to train judges who rule in divorce, child custody and parenting time cases may be withheld from the public. From now on, Nebraskans aren’t permitted to know how their judges are trained.

How does that square with the ruling by the Nebraska Supreme Court in Veskrna vs. Steele that those very records are public under the Nebraska Public Records Act? The state’s highest court sided with Dr. Les Veskrna who wanted to know what education family court judges are receiving. Well, I’m not sure.

After all, the Nebraska Legislature long ago enacted the Public Records Act that unambiguously supports the public’s right to know regarding a very wide range of governmental behavior. The law plainly promotes openness and discourages secrecy. The public’s right to know is, generally speaking, the policy of the state and has been for a long time.

So how does a non-legislative body appoint itself to contradict the legislature? Moreover, how does it do that when doing so involves an apparent conflict of interest? By its new rule, judges are shielding themselves from public scrutiny when law and public policy argue for openness.

My guess is that the Court seeks to accomplish its nefarious goal this way:

(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.

That’s No. 4 in a laundry list of items that are public. So the content of training programs for judges are public IF the author of same gives express written consent to their publication. In other words, Bob Emery can refuse that consent and no one anywhere can know what he told Nebraska’s judges.

I suspect the Court wants to warm the winter of potential legislative discontent by that particular dodge. The idea being that the only ones they’re protecting are the ones who produce the content of the training sessions.

Will that work? I have no idea. Certainly, it is well within the power of the legislature to overturn this rule. Members can simply pass a law specifically stating that materials used to train judges are open to the public. Period. And that would put an end to this sorry saga.

Conspicuously absent from the Supreme Court’s recent message on the new rule is any justification for it. Why should the people’s right to know be trumped by a single social science researcher who may not even live in Nebraska? The Court is mum on that subject. And well it might be.

I for one can’t think of a single argument in favor of keeping secret judicial training materials. It’s interesting to say the least that the Court failed to advance one. Interesting too is the fact that, in Veskrna vs. Steele, it batted down every argument Steele (the Administrator of Courts) made in favor of secrecy. It is, therefore, a fair conclusion that the Court has no justification for the rule it so recently promulgated.

At least the Court’s depressing message is leavened by a sense of humor.

It is essential to the public… to ensure the delivery of quality judicial services to the people of the State of Nebraska.

That certainly brought a guffaw from me. This is the crowd that routinely turns fit fathers out of the lives of their children. As the analysis of family courts in the state conducted by Michael Saini showed, despite barely 5% of cases even alleging one parent to be unfit – and certainly vastly fewer actually being so – Nebraska judges granted shared parenting in only …% of cases. And of course a child’s chance of maintaining real relationships with both parents varies radically from one county to another.

If that’s “delivering quality judicial services to the people of the State of Nebraska,” I’ll eat my hat.

The Nebraska Legislature should put a stop to this. The people of Nebraska deserve to know how the judges who determine a child’s relationship with its parents are trained in deciding that all-important issue. It’s past time judges stopped hiding their training from the public. Their disdain for the legislature, their disdain for the people of the state is shameful

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