If you’re in Nebraska family court, you might wonder why child custody and parenting time outcomes are so seemingly different throughout your state. But if you’re a shared parenting advocate like Les Veskrna, you want answers. Veskrna is a Lincoln family physician and executive director of the Children’s Rights Council of Iowa and Nebraska.
Hypothesizing that training might account for the dissimilar results, Veskrna asked Nebraska State Court Administrator Corey Steel for information about the training judges receive on custody and parenting matters. Specifically, Veskrna requested access to related judicial continuing education documents. “Looking at disparate outcomes for child custody and parenting time throughout Nebraska, it appears judicial practices are not consistent with the literature,” Veskrna explained. And he added, “A growing body of research suggests that children in divorce do best emotionally and in school when they spend meaningful time with both parents.”
Steel, however, denied the request. He contended that training information wasn’t subject to disclosure under state public records law. Moreover, he said that the records were entwined with a judge’s deliberative process and therefore, privileged. Veskrna disagreed. The Nebraska Constitution at I-13 says that “All courts must be open.” And the explicit purpose of Nebraska’s Public Records Statutes is to “guarantee that public government records are public.” Under the law, Nebraskans have “the right to obtain access to, and copies of, public records in the custody of public agencies in the state.” So in 2015, Veskrna went to court to seek an order that Steel turn over those records.
In January of this year, a Lancaster County, Nebraska District Court agreed with Veskrna and ordered the Nebraska Judicial Branch to release training documents disclosing how judges learn to adjudicate child custody disputes.
The First Amendment and public access.
Admittedly, the First Amendment does not expressly address public access. It fosters “individual self-expression.” But at the same time, it affords “the public access to discussion, debate, and the dissemination of information and ideas.” The First Amendment “goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 (1978).
Presume an interested Arizonan wants to emulate Les Veskrna and ask for judicial continuing education training records on custody and parenting matters or on any other area of law such as, for instance, handling capital cases. In Arizona, that person would discover that “Evaluation materials and records generated by participants in judicial education programs such as test scores, educational assessments, practical exercise worksheets, and similar materials are closed” in accord with Arizona Supreme Court Rule 123, (13) Judicial Branch Training Materials and Records. Does this rule mean that information about how and what training judges acquire directly related to their tax-payer paid work is closed to public access? It depends — on the Court.
The Court has its own public access rules to govern the maintenance and disclosure of judicial records. Arizona Supreme Court Rule 123, “Access to the Judicial Records of the State of Arizona,” controls — not Arizona Public Records Law. See London v. Broderick and Arpaio v. Davis.
And no matter that Arizona’s Constitution at Article II, Declaration of Rights, makes a similar — but not quite the same — declaration as Nebraska’s Constitution about court openness. “Justice in all cases shall be administered openly,” says Section 11.
The plain meaning of a “public body” under Arizona Public Records Law should deem that state courts statutorily meet the definition as “any branch, department, board, bureau, commission, council or committee of the foregoing, and any public organization or agency, supported in whole or in part by monies from this state or any political subdivision of this state, or expending monies provided by this state or any political subdivision of this state.”
But in Arizona, the Court decides public access for itself and it decided to exempt itself from state public records law. Not that this is unusual. The view of state supreme courts elsewhere aligns with Arizona. The state supreme courts in Washington and Nevada, for example, have likewise expansively interpreted their state constitutions to declare state public records laws off-limits to their courts.
In City of Federal Way v. David Koenig, 167 Wn.2d 341(Washington 2009), the Washington Supreme Court held the state public records act does not apply to the judiciary and judicial records.
And in Nevada in Civil Rights for Seniors v. Admin. Office of the Courts, 129 Nev. Adv. Op. 80 (Nevada 2013), the Nevada Supreme Court held that considering the judiciary’s authority to manage its own affairs, it would limit the scope of the public’s access to the records maintained by the Administration of the Courts (AOC).
Unfortunately, despite constitutional, statutory and common law presumptions favoring public access, the legal establishment inclines toward reticence — if not outright opacity. Just a few months ago, for example, UCLA Professor Richard Sander’s decade-long fight to obtain test score, grade and bar exam passage information from the California State Bar was finally allowed to proceed to trial over the Bar’s ongoing objections.
Credits: Tweed and Erie Rings play blind man’s bluff with justice, Harper’s Weekly, at Wikimedia Commons, public domain; FOIA via Fort George G. Meade Public Affairs Office, Constitution monument, posted to Flickr by euthman, Wikimedia Commons, attribution generic license.