Posts Tagged ‘Watergate’

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]


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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← previous pageI’ve long thought it was too bad for Dick Nixon that his presidency predated the 24/7 “new” media, particularly politically conservative Fox News. If any scandal-plagued politician could’ve benefited from a second act, it was the 37th President of the United States Richard Milhous Nixon who because of the Watergate scandal became the only president to resign the office back on August 9, 1974. For years afterward, poor Dick worked tirelessly through memoir after memoir to rehab his tarnished image and reputation. How much easier it might’ve been to become an ‘elder statesman’ as a cable news talking head.

My thoughts turned to “Tricky Dicky” when this month, a local business ethics professor and lawyer Marianne Jennings brought up the former president in an Arizona Attorney Op-ed,“The Last Word: Twelve Angry Men, and Counting,” as she snidely criticized “the benefits of hearing from former White House lawyers who throw their Republican president under the bus.”
It was in the context of former Nixon White House counsel John Dean who having since found his lawyer ethics manual, now teaches post-Watergate legal ethics. Jennings claims lawyers unfairly play favorites when their choices on who to defend are “limited by the ethical tin ear to those who fall within certain political parameters.”

Jennings is a staunch conservative so the parameters she tilts against move left. But she should’ve picked better examples for the pity-party than I’m not a crook Richard Nixon and global management consulting firm McKinsey & Company and financial services rating company Standard & Poor’s. The latter are among those unpopular corporate behemoths she complains aren’t getting any defense lawyer love these days.

But having read the chapter on Standard & Poor’s in Gretchen Morgenson’s “Reckless Endangerment: How Outsized Ambition, Greed, and Corruption Led to Economic Armageddon,” excuse me for not feeling the love. Also see “Credit rating agencies and the subprime crisis and “The credibility and integrity of S&P’s ratings action.” As for McKinsey, “The firm that built the house of Enron,” ditto the sentiment.

Fox Rehab.

But back to Fox, whose news outlet has become this generation’s first and last refuge for seemingly every blemished or scandal-tinged or shop-worn pol, disconnected operative or cast-off apparatchik from the right side of the aisle.

Dactyl-connoisseur Dick Morris, for example, was an early contributor along with Iran-Contra’s Oliver North and trailed subsequently by a long list in no particular order of Newt Gingrich, Karl Rove, John Kasich, Sarah Palin, Rick Santorum, Mike Huckabee, Michael Steele, and John Bolton.

Fanne Foxe
And yet another Nixon-era politician who might’ve reburnished his reputation through career-rehabilitating punditry on Fox News (had he also not been a Democrat), was Arkansas Congressman Wilbur Mills who got caught up with Annabelle Battistella a.k.a. Fanne Foxe, the “Argentine Firecracker.” Her claim to fame was that she was Wilbur’s stripper girlfriend from Argentina.

Mark Sanford.

File:MarkSanford.jpgSo it’s hardly surprising to hear the news a few days ago that disgraced Former South Carolina Gov. Mark Sanford, the latter-day hiking discoverer of the Argentinian Appalachians has been named to the roster of right-wing talking heads at Fox News. Sanford eventually admitted to fibbing about hiking in the woods when he was otherwise occupied hooking up with his own Buenos Aires baby-doll.

But with self-exculpating philanderer because of “how passionately I felt about this country” Newt Gingrich now running for president, there’s still room on the commentating bench.


And while he might’ve once been “tanned, rested, and ready,” – – – short of exhumation, Nixon’s no longer available. So I wonder when Nevada’s “Disgraced Republican senator John Ensign” or convicted former House Speaker Tom DeLay will get tapped to opine on the career rehab news channel? It’s only a matter of time.

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