When the Judicial Council, which oversees California’s courts, announced in May that records of financial settlements involving courts would be public, it seemed like a win for the public’s right to know. It was less of a win than everyone thought.
Secrecy around settlements came up last year and carried into the spring after media outlets learned that courts quietly had settled harassment, gender discrimination and other misconduct claims. Courts used taxpayer dollars to pay settlements that sometimes exceeded $100,000 without telling taxpayers about it. The name of the official accused and what the official allegedly did almost never came out. In total, courts around the state have paid out more than $645,000 since 2012.
That’s not a lot of money in the grand scheme of the state budget, but the amount of money wasn’t really the point.
The public expects those empowered to uphold the law to also abide by the law. When court officials engage in misconduct, the public needs to know because it calls into question the impartiality of the court. Moreover, judges must periodically stand for re-election. In the lower courts, judges often run unopposed, but a challenger might come forward against a judge who harassed a court recorder, and voters might express their dismay with their ballots. (Voters cast “yes” or “no” for reconfirmation of appellate judges and the state Supreme Court.)
The pressure on the courts to come clean increased as the #MeToo movement focused public attention on sexual harassment and as the Legislature ratcheted up its own efforts to name lawmakers who had resolved harassment complaints.
The Judicial Council’s announcement in May, then, should have set the courts on a more transparent path. Records would be public, and the names of judges who acted badly would be, too.
The Recorder, which reports news about the legal community, requested settlement agreements from across the state. Most courts had none, but among those that did, most delivered heavily redacted copies. The useful information was blacked out.
Most of the settlement agreements also include confidentiality clauses. One has a provision stating that “the parties also agree that they will not, directly or indirectly, initiate any contact with any member of the media regarding the dispute.” It goes on to instruct that all inquiries will be responded to with, “This is a private personal matter. The parties have reached an amicable resolution of their differences.”
That sort of confidentiality might be fine for two private entities entering into a settlement agreement. Indeed, businesses often settle to avoid public scrutiny. But these aren’t two private entities. The courts are part of the government, and the public therefore has a stake in their settlements.
Underlying all of this is the fact that the courts — and the Legislature — are exempt from California’s public records laws. Rather than rely on the goodwill of lawmakers and judges to release embarrassing information, the disclosure rules that apply to the rest of government should apply to them. There are sensitive records that warrant secrecy, but a nuanced law with carefully crafted exceptions could cover that and ensure that the public finds out when a judge discriminates against or harasses an employee.
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