STATE OF NEBRASKA EX REL. LES W. VESKRNA, M.D., APPELLEE AND CROSS-APPELLANT,
COREY R. STEEL, STATE COURT ADMINISTRATOR, APPELLANT AND CROSS-APPELLEE.
Mandamus: Words and Phrases. Mandamus is a
law action, and it is an extraordinary remedy, not a writ of
Judgments: Appeal and Error. In a bench
trial of a law action, the trial court's factual findings
have the effect of a jury verdict, and an appellate court
will not disturb those findings unless they are clearly
Mandamus. Whether to grant a writ of
mandamus is within the trial court's discretion.
Courts: Constitutional Law: Judgments: Appeal and
Error. Regarding the judicial deliberative process
privilege, an appellate court reviews de novo a district
court's conclusions of law and reviews for clear error
the district court's findings of fact.
Constitutional Law: 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
Constitutional Law. The powers of the three
departments of government are derived from express grants in
the Constitution and from the inherent right to accomplish
all objects naturally within the orbit of each department,
not expressly limited by the existence of a similar power
elsewhere or express limitations in the Constitution.
Courts: Constitutional Law. By creating and
regulating Judicial Branch Education, the Nebraska Supreme
Court exercises a power constitutionally committed to it.
Legislature: Constitutional Law: Statutes: Public
Policy. The Legislature exercises a power
constitutionally committed to it by enacting statutes to
declare what is the law and public policy.
Neb. 582] 9. Legislature: Statutes: Intent:
Records. In enacting the public records statutes,
the Legislature has determined that the welfare of the people
is best served through liberal public disclosure of the
records of the three branches of government.
Constitutional Law. The constitutional
principle of separation of powers demands that in the course
of any overlapping exercise of the three branches'
powers, no branch may significantly impair the ability of any
other in its performance of its essential functions.
. An analysis of the overlapping exercise of constitutionally
delegated powers focuses on 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.
Constitutional Law: Courts: Legislature:
Statutes. 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.
Constitutional Law: Records. The extent that
legislatively mandated disclosure of another branch's
records impairs that branch's constitutionally assigned
functions depends on both the importance of the underlying
activity and the consequences to that activity of disclosing
the particular records requested.
Constitutional Law: Judges. The proper
constitutional balance requires a narrowly tailored, albeit
absolute, judicial deliberations privilege.
Constitutional Law: Courts: Judges: Records.
Whether preservation of the essential functions of the
judicial branch requires the confidentiality of Judicial
Branch Education records is to be determined on a
case-by-case basis in accordance with existing rules
promulgated by the Nebraska Supreme Court, the judicial
deliberations privilege, and state constitutional principles
respecting the proper balance between the coordinate
from the District Court for Lancaster County: Susan I.
Strong, Judge. Affirmed.
Douglas J. Peterson, Attorney General, David A. Lopez, L. Jay
Bartel, and Leslie S. Donley for appellant.
Steven Grasz and Kamron T. Hasan, of Husch Blackwell, L.L.P.,
D. Renner, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., and Eugene Volokh, of Scott & Cyan
[296 Neb. 583] Banister Amicus Brief Clinic, UCLA School of
Law, for amicus curiae Media of Nebraska, Inc.
Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.,
and Riedmann, Judge.
NATURE OF CASE
R. Steel, the State Court Administrator, appeals from a writ
of mandamus ordering the disclosure, pursuant to
Nebraska's public records statutes, of Judicial Branch
Education (JBE) records. Steel argues that the unwritten policy
of the JBE advisory committee (Committee) is that all JBE
records are confidential and that such policy falls under the
exception to the "public records" definition, which
is allowed "when any other statute expressly provides
that particular information or records shall not be made
public."Alternatively, Steel relies on the concepts
of separation of powers and the judicial deliberative
privilege. He asserts that it is for the Committee, not the
Legislature, to determine what JBE records are appropriate
for public disclosure and that the judiciary's essential
functions require the confidentiality of JBE records. We
Veskrna filed a complaint for a writ of mandamus requiring
Steel, in his capacity as State Court Administrator, to
provide copies or allow inspection of continuing education
records for the court since July 1, 2012, pertaining to child
custody and parenting time. Veskrna alleged that such records
are not protected by any privilege derived from the
court's inherent powers or otherwise shielded by virtue
of any other inherent constitutional power of the judicial
branch and that [296 Neb. 584] public access to JBE records
does not infringe on any power essential to the existence,
dignity, and functions of the court.
Request and Response
to the complaint was Veskrna's email to Steel requesting:
all records in any form, including PowerPoint presentations,
handouts, notes, video and audio recordings, correspondence,
memoranda, email and other communications, regarding judicial
education programs since July 1, 2012 on child custody and
parenting time. This request includes records, including
email and other communications, regarding the selection of
presenters, how those presenters were selected, contracts
with presenters and other outside parties, and all training
also attached the email response from Steel denying the
The Nebraska Supreme Court established [JBE] and adopted
rules governing such education, Neb. Ct. R. §§
1-501 et seq., pursuant to its administrative, supervisory
and inherent authority over the state's judicial system.
See, Nebraska Constitution, Article V, § 1. Internal
court records pertaining to the JBE system are under the
exclusive control of the judiciary. As the Nebraska Attorney
General has recognized, in Neb. Op. Arty. Gen. No. 04030,
every court has power over its own records and files; even if
the Nebraska Public Records Act applies to certain judicial
records, "the courts may possibly take the position that
any obligation which they have to produce records . . . under
the [Act] is subject to their supervisory power over their
own records and files."
Judicial education was instituted by the Supreme Court to
protect the integrity of the judicial system for the benefit
of the general public. Neb. Ct. R. § 1-501 expresses
that intent: "It is essential to the public that judges
. . . continue their education in order to maintain and
increase [296 Neb. 585] their professional competence, to
fulfill their obligations under the Nebraska Revised Code of
Judicial Conduct, and to ensure the delivery of quality
judicial services to the people of the State of
Additionally, judicial education is closely intertwined with
the deliberative and decision-making process employed by a
judge in fulfilling his or her duty to independently decide
legal cases. The independence of the judiciary, which is
crucial to maintaining the public's trust, is
strengthened by the protection of deliberations between
judges and those who assist the judge in the analysis of
legal issues, including staff and educators who enhance a
judge's knowledge base. For these reasons, administrative
records associated with judicial branch education are not
public records subject to release under the Nebraska Public
Steel's Answer to Complaint
answer to Veskrna's complaint, Steel denied that the
"Nebraska Public Records Act" was '"on its
face'" applicable to the judicial branch. Steel also
denied Veskrna's allegation that JBE records are not
protected by any privilege derived from the court's
inherent powers or otherwise shielded by virtue of any other
inherent constitutional power of the judicial branch. He
denied the allegation that public access to JBE records does
not infringe on any power essential to the existence,
dignity, and functions of the court. Steel asserted that
records pertaining to judicial education were not
'"public records'" as defined by §
84-712.01. Steel generally alleged that Veskrna did not have
a clear right to receive records pertaining to judicial
education and that Steel had no corresponding clear duty to
produce such records.
and Steel filed cross-motions for summary judgment. At the
hearing on the motions, Veskrna clarified that he did not
request records of the judges' attendance at the JBE [296
Neb. 586] programs, nor their ratings of the presenters.
Veskrna wished to have access only to what seminars were
presented, who the presenters were, and what materials were
asserted that the requested JBE records fell under
"public records" as defined by the public records
statutes and that no statutory exception applied. Section
84-712.01(1) defines public records in part:
Except when any other statute expressly provides that
particular information or records shall not be made public,
public 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.
pointed out that the public records statutes facially apply
to the judicial branch and that these statutes have been
recognized as applicable to the judicial branch in Nebraska
asserted that the JBE records requested were not privileged
under the deliberative process privilege but did concede that
the judiciary can withhold documents under the deliberative
process privilege. He asserted that although this court has
inherent powers under article V, § 1, of the Nebraska
Constitution, including the inherent power to restrict public
access to certain records, records which are administrative
in nature cannot be withheld. Veskrna argued that while
"chambers records" and "case records"
might traditionally be protected from access,
"administrative records" are not. And, Veskrna
asserted that allowing public access to JBE records does not
unduly encroach upon the judiciary's core functions,
noting that mandatory judicial education was [296 Neb. 587]
only recently adopted in 2004. Finally, Veskma argued that
the open courts provision of the Nebraska Bill of Rights
argued that the Committee's informal policy and practice
that all JBE records be kept confidential falls under the
exception of § 84-712.01(1). Steel argued that JBE
records fell under the exception to the definition of public
records, because such confidentiality is
"authorized" by Neb. Rev. Stat. § 24-205.01
(Reissue 2016) and Neb. Ct. R. § 1-512(A) (rev. 2013).
24-205.01(2)(a) states that the Committee may "[d]evelop
for review by the Supreme Court standards and rules and
regulations addressing such issues as the criteria for
mandatory education for judges, criteria for approval of
qualified activities, reporting requirements, sanctions for
noncompliance, exemptions, and confidentiality of
records." Steel contends the language
"confidentiality of records" is an express
recognition by the Legislature that this court may deem JBE
records confidential. Section 24-205.01(2)(b) states that the
Committee may "[d]evelop for review by the Supreme Court
standards and policies for education and training of all
nonjudge judicial branch employees, including criteria for
approval of qualified activities, reporting requirements,
sanctions for noncompliance, and exemptions."
1-512(A) states that the advisory committee shall have
authority to "[d]evelop and review standards and
administrative rules addressing such issues as the criteria
for mandatory education for judges, criteria for approval of
qualified activities, reporting requirements, sanctions for
noncompliance, exemptions, and confidentiality of records for
approval of the Court and incorporation into this rule."
Steel did not claim that the Committee had, in fact,
developed such rules. And Steel acknowledged that our court
has not yet adopted rules governing the confidentiality of
Neb. 588] Steel also argued that given separation of powers
principles, the Legislature cannot intrude upon the Nebraska
Supreme Court's express and inherent powers that are
being exercised in its control over public access to JBE
records. In this regard. Steel cited to article II, § 1,
and article V, § 1, of the Nebraska Constitution. Neb.
Const, art. II, § 1(1), states:
The powers of the government of this state are divided into
three distinct departments, the legislative, executive, and
judicial, and no person or collection of persons being one of
these departments shall exercise any power properly belonging
to either of the others ...