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Posts Tagged ‘Guinn v. Legislature’

Last July in Courts and Transparency, I discussed the public records case of Les Veskrna, a Lincoln, Nebraska family doctor and executive director of the Children’s Rights Council of Iowa and Nebraska. Veskrna had requested copies or inspection of the court’s continuing education records pertaining to the training judges receive in child custody and parenting time matters from the Nebraska State Court Administrator. After his request was denied, he sued.

A district court earlier ruled against the court administrator and ordered that under Nebraska public records law, the requested Judicial Branch Education (JBE) records be turned over to Veskrna. The court administrator promptly appealed to the Nebraska Supreme Court.

Yesterday, the Nebraska high court unanimously affirmed the lower court. It granted Veskrna a sweeping win and ordered access to the requested records, save for a redacted email. The Court also awarded him costs and attorney fees. Read State Ex Re. Veskrna v. Steel 296 Neb. 581 here and also see Supreme Court: Judges’ training documents are public record and Nebraska Supreme Court sets precedent by ruling that some judicial records are public.

No undue interference.

The Nebraska Supreme Court said the under state public records statutes, disclosing the requested records “does not unduly interfere with any essential function of the judicial branch.” 

The Court Administrator, Corey Steel, had argued that the 12 records requested by Veskrna were not public records. Steel also asserted disclosure would violate separation of powers were the Court “to accede to any statutory scheme that mandates the disclosure of JBE records.” The Court, however, explained there was no interference.

“We agree that whether or not we have adopted any court rules concerning the confidentiality of our JBE records, the public records statutes do not trump the constitutional imperative that one branch of government may not unduly interfere with the ability of another branch to perform its essential functions. We simply find no undue interference in disclosing the records at issue.”

One part of the decision drew my immediate interest. It should serve as prudent admonition for other states. Often enough, in my opinion, especially in school funding and state employee pension reform cases, there has been an unfortunate tendency for courts to stretch the bounds of permissible interference on another branch’s “essential functions.” See, for example, How far will the state Supreme Court go on McCleary? and Guinn v. Legislature of State of Nevada and Kansas Supreme Court rules school funding inadequate and Court’s pension ruling could cost Arizona taxpayers millions.

Courts are supposed to interpret not make law. Interests should be balanced and limits assessed with caution.

“It is for the judiciary to say when the Legislature has gone beyond its constitutional powers by enacting a law that invades the province of the judiciary. But the judiciary should “‘“proceed cautiously”’ in relying on ‘inherent authority’” and must give “‘due consideration for equally important executive and legislative functions.’” Determining the constitutional limits of the Legislature’s plenary lawmaking authority in the context of the separation of powers between the judicial function and power and the legislative one is a difficult endeavor that must proceed on a case-by-case basis.” [internal citations omitted]

https://upload.wikimedia.org/wikipedia/commons/thumb/2/21/NIXONcampaigns.jpg/320px-NIXONcampaigns.jpg

Richard Nixon, Wikimedia Commons, public domain.

Transparency as virtue.

The Nebraska Supreme Court also cited with approval United States v. Nixon. For those who skipped U.S. history class, Richard Nixon was the 37th President of the United States and had claimed executive privilege on national security grounds to block release of White House audiotapes as part of a cover-up related to the Watergate scandal. The U.S. Supreme Court ruled 8-0 against him although it did recognize executive privilege as a legitimate power of the president — but not an absolute one. It rejected overly broad claims of executive privilege to shield records from public disclosure laws.

In this context, the Nebraska high court properly said “the ultimate inquiry when faced with the overlapping exercise of constitutionally delegated powers is the extent to which one branch is prevented from accomplishing its constitutionally assigned functions, balanced against the other branch’s need to promote the objectives within its constitutional authority.”  This is a key consideration.

But the other important principle has to be the respect accorded public access and transparency. “We have always supported transparency and the search for truth,” the Court declared. This must remain a cherished virtue even when the legal establishment habitually inclines toward reticence — if not obstinate opacity.

 

 

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Clarence Thomas - Caricature | by DonkeyHoteyU.S. Supreme Court Justice Clarence Thomas told a meeting of lawyers last week that “unchecked judicial power” means “we leave it for the least accountable branch to decide what newly discovered rights should be appended to our Constitution.” To his point, the role of courts is to interpret constitutions not to make or enforce law. (I won’t repeat that umpire analogy).

Likewise among the states, their supreme courts are supposed to interpret and rule on the constitutionality of statutes not make law from the bench. But when things don’t go precisely like they’re supposed to, you notice.

Which brings me to what happened in Arizona last week. It was the state supreme court decision in the public employee pension case of Honorable Phillip Hall Et Al., v. Elected Officials Retirement Plan/State of Arizona.

Without diving into the weeds, Hall was about retirement benefits and contributions and whether they’re part of an ’employment contract.’ It was also about the Gift Clause in the Arizona Constitution. For an accessibly excellent commentary, see Arizona Republic Columnist Robert Robb’s aptly titled “Pension reform is now impossible in Arizona.”

Yipee! Project 365(3) Day 250 | by Keith Williamson

Pension reform matters because according to a 2013 report by the independent financial research group, Morningstar, most states’ pension plans continue to be underfunded below the 80 percent level considered healthy. As summarized by Ballotpedia, “Decreased funding and increasing liabilities since the 2008 recession continued to put pressure on local and state budgets, in some cases leading to bankruptcy. Higher pension costs can have the following consequences:

  • higher taxes
  • less intergovernmental aid for services
  • lower credit ratings
  • higher interest rates on state borrowing”

I agree completely with Justice Clint Bolick’s dissent in the Hall case. It was well-reasoned and persuasively argued. Most of all, it was refreshingly candid. Reading the majority opinion, you have the sense they didn’t much care for the demurrer.

How bracing, though, to hear a dissenting voice on this state’s high court — so welcome, so invigorating, so rare. Four of the five sitting justices recused themselves because the case would have had a bearing on their own retirement plans. But because Justice Bolick joined the high court after the law was changed, he had no such conflict nor did the four guest justices also deliberating.

Grisham-like legal fiction.

J.C. Hallman 10.06.09 | by kellywritershouse

Bolstered by a sharp wit, Justice Bolick’s keen analysis evoked nods and smiles from the first page. He likened the Court’s 51-year old finding that at-will state employees actually had a contract with the state to “a work of legal fiction to which the likes of John Grisham could only aspire.”

Equally remarkable, too, was that across its 21 pages, the majority failed to mention taxpayers — the poor slobs who’ll face higher taxes or cuts in services to pay promised pension benefits. To be fair, the majority did reference “the State” but in doing so, seemed to gloss over taxpayers who are ultimately the ones saddled with funding shortfalls in the State’s largesse. Indeed, Justice Bolick appeared to chide the majority’s rather cavalier observation that the retirement plan’s “actuarial soundness is within the Legislature’s control” — because it can always hike taxes and court fees — “apparently ad infinitum.”

Judges Gavel“Of the judges, by the judges, and for the judges.”

But the money paragraphs were these from Justice Bolick:
“If  ever  there were a  case in  which  we  should  seriously indulge  the  presumption  of  statutory constitutionality,  this  is  it.   The majority winks  at  that rule,  then  utterly fails  to apply it.   It  repeatedly invokes  the  mantle  of  judicial restraint  while  casually  invalidating  a statute designed  to  preserve  the financial stability  of  a  public  employee pension  plan,  a  purpose  so  important  that  the  voters  made  it  part  of  our state’s organic law.
 
 “The  majority  opinion  portends  a  huge  financial windfall  for the  class  members,  a  burden  the  taxpayers  will  shoulder.   Under  such circumstances,  we  should  act  with  great  restraint,  lest  the  rule  of  law be undermined by  a  public  perception  that  this  decision  is  of  the  judges,  by the  judges,  and  for  the  judges.   On  this  important issue,  the  majority exhibits  no such  restraint,  and we  therefore  respectfully  dissent.”

Outcome-based jurisprudence.

If there’s one thing you learn in law school is that courts sometimes back into their decisions. Adopting what’s called outcome-based jurisprudence, they first decide what the outcome of a case should be and then work backwards to find the reasoning that reaches the desired conclusion. A criticism of this approach was made in March when a split U.S. Supreme Court left mandatory union dues in place in Friedrichs v. California Teachers Association.

In my opinion, the Arizona Supreme Court found the outcome it wanted, which was to shift policy choice burdens away from active employee retirement plan members and place them instead on taxpayers “by freezing employee contribution rates in perpetuity” to quote Justice Bolick. Indeed, he referred to some of the majority’s rationale as “pick-and-choose jurisprudence.”

https://cdn.morguefile.com/imageData/public/files/p/pippalou/03/l/1363479372ipbgy.jpgIn Nevada, I remember its version of “pick-and-choose.” It was the 2003 Nevada Supreme Court case of Guinn v. Legislature, which came about when the Nevada Legislature deadlocked over the state budget. Nevada’s late Governor Kenny Guinn petitioned the Nevada Supreme Court for an Order declaring the Legislature in violation of the Nevada Constitution. More to the point, he wanted the Court to compel the legislature to fulfill its constitutional duty to approve a balanced budget; to ignore the 2/3rd super majority Nevada Constitutional requirement to raise taxes; and to appropriate funds for public education during that fiscal period.

A child's primer of natural history (1899) | by CircaSassyBut there was a fly in the apothecary’s ointment. Notwithstanding the Court’s decision, the Nevada Constitution at Art 4. Sec. 18(2) enacted in 1996 by voter initiative was not to be ignored. The voters and taxpayers enshrined in their state constitution the 2/3 super majority tax hike requirement to make raising taxes difficult. And that was the rub.

It’s clear the Court had the outcome in mind to fund education — a meritorious end to be sure. But to do so, it had to find justifiable means. So it parsed the super majority requirement to pirouette over the voter imposed 2/3 majority prerequisite. It said the requirement was “procedural” while the affirmative constitutional obligation to fund public education was “substantive.”

And so procedural rights were thrown under the bus when the Court decided the substantive right was more important even as Nevada’s Constitution Article 11, Sec. 6 only required that “the Legislature shall enact one or more appropriations to provide the money the Legislature deems to be sufficient, . . . .”

To its credit, Nevada’s high court reversed itself as part of a subsequent 2006 opinion.

But don’t expect a similar reconsideration in Arizona.

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Credits: Clarence Thomas – caricature by DonkeyHotey at Flickr Creative Commons attribution license; Yippee, by Keith Williamson at Flickr Creative Commons attribution license; J.C. Hallman, by kellywritershouse at Flickr Creative Commons attribution license; A child’s primer of natural history, by CircaSassy at Flickr Creative Commons attribution license.

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