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State ex rel. Veskrna v. Steel

Supreme Court of Nebraska

May 5, 2017

STATE OF NEBRASKA EX REL. LES W. VESKRNA, M.D., APPELLEE AND CROSS-APPELLANT,
v.
COREY R. STEEL, STATE COURT ADMINISTRATOR, APPELLANT AND CROSS-APPELLEE.

         1. Mandamus: Words and Phrases. Mandamus is a law action, and it is an extraordinary remedy, not a writ of right.

         2. 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 erroneous.

         3. Mandamus. Whether to grant a writ of mandamus is within the trial court's discretion.

         4. 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.

         5. 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 functions.

         6. 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.

         7. Courts: Constitutional Law. By creating and regulating Judicial Branch Education, the Nebraska Supreme Court exercises a power constitutionally committed to it.

         8. 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.

         [296 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.

         10. 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.

         11. __ . 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.

         12. 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.

         13. 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.

         14. Constitutional Law: Judges. The proper constitutional balance requires a narrowly tailored, albeit absolute, judicial deliberations privilege.

         15. 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 branches.

         Appeal 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.

          L. Steven Grasz and Kamron T. Hasan, of Husch Blackwell, L.L.P., for appellee.

          Shawn 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.

          PER CURIAM.

         I. NATURE OF CASE

         Corey 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.[1] 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."[2]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 affirm.

         II. BACKGROUND

         1. Complaint

         Les W. 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.

         2. Request and Response

         Attached 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 materials.

         Veskrna also attached the email response from Steel denying the request:

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 Nebraska."
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 Record[s] Act.

         3. Steel's Answer to Complaint

         In his 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.

         4. Summary Judgment

         Veskrna 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 presented.

         (a) Veskrna's Arguments

         Veskrna 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.

         Veskrna 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 case law.

         Veskrna 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.[3] 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 supported disclosure.

         (b) Steel's Arguments

         Steel 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).

         Section 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."

         Section 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 JBE records.

         [296 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 ...

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