Judge Horan Levels Wrongful Accusations

Thursday, February 18, 2010

Page 7

LETTER TO THE EDITOR

Judge Horan Levels Wrongful Accusations

In a column that appeared in your paper on February 12, [Los Angeles Superior Court] Judge [Charles] Horan rather directly accuses the Chief Justice, the Administrative Director of the Courts, and me of duplicity in our efforts to ensure that the governance processes of the Judicial Council are open and transparent. As evidence of this, he goes on at some length about changes made to the Judicial Council’s Governance Policies in June 2008. That 12-page document was posted on the California Courts web site and incorporated into the Rules of Court after it was reviewed and approved by two council committees and by a unanimous vote of the council, including four of Judge Horan’s colleagues from the Los Angeles bench.

The policies are concerned primarily with the council’s internal operating guidelines—the responsibilities of members, committees, and the Administrative Director. The governance policies assign no new authority to the council or to the Administrative Director, nor do they impact the operations of either the trial or appellate courts. We view this document as a basic good governance practice of a constitutional body, and not, as suggested by the erroneous title of Judge Horan’s opinion piece, “Secret Judicial Council Vote Rewrote Branch Governance Policy.”

As the editor of a newspaper that is read by lawyers and judges, I invite you to contact me or any member of the council to clarify issues of branch governance. We have no interest in limiting the speech of fellow jurists. We do expect, however, some measure of responsible journalism be applied even to those pieces labeled “Opinion.”

RICHARD D. HUFFMAN

Associate Justice

EDITOR’S RESPONSE: The writer is a justice of Div. One of the Fourth District’s Court of Appeal, headquartered in San Diego, and is a member of the Judicial Council.

This newspaper provided a forum to Horan, director of the fledgling Alliance of California Judges, who expressed certain views—including his questioning of closed “issues meetings” of the Judicial Council, held a day before the public sessions.

The bulk of his discussion concerns the “Judicial Council Governance Policies, June 2008” which he describes as “not a trivial document,” but rather, “the guts of the governance machine.”

Horan asserts that if the Council did approve the document in June, 2008—and with it, changes it makes in policies—it had to have done so secretly. The Council’s 2008 minutes, he notes, make no reference to any changes in governance policies until December. (There was this one-line reference: “In June 2008, the Judicial Council adopted new governance policies that provide for Litigation Management Committee oversight of claims and litigation seeking $100,000 or more.”)

In August, 2009, he points out, the June, 2008 policies were incorporated into the Rules of Court. (The minutes say: “On July 14, the [Rules and Projects][C]ommittee met to review a proposal to amend the rules of court to conform them to the new governance policies adopted by the Judicial Council in June 2008. The committee recommends approval of this proposal, which is Item 3 on today’s consent agenda.”)

The jurist decries the Council’s failure to send the proposed changes out for public comment, which he observes is “contrary to the usual practice.” He relates that Huffman’s stated rationale for not doing so was that certain matters had already been finally decided by the Council, and were thus not subject to comment. Horan proceeds to indicate his disagreement with that approach, but acknowledges that members of the Council were apparently on the same wave length as Huffman, enacting the governance policies as court rules in August, 2008, without discussion.

He reiterates his puzzlement over how the policies came to be adopted in June, 2008, since the only reference to them appears in minutes for August. Horan relates that he made this inquiry of Administrative Office of the Courts staff members: “When and how was the 6/08 Judicial Council Governance Policies revision adopted by the Council?” The emphasis is his. He reports: “After exhaustive search efforts over several days, they gave up, confessing to shared confusion.”

Now comes Huffman’s letter. In it, Huffman becomes huffy. His parting shot is: “We do expect…some measure of responsible journalism be applied even to those pieces labeled ‘Opinion.’ ”

There was no departure from “responsible journalism” in publishing Horan’s opinion piece. Had the MetNews set out to prepare a news report on remarks by Horan, standard journalistic practice would have been for the reporter to seek responsive comments from those persons whom Horan criticized. Soliciting responses is not, however, standard practice preparatory to publishing an opinion piece. Responses traditionally come after the article is published, such responses being in the form of a “letter to the editor” or a full-fledged opinion piece expressing a differing viewpoint.

Huffman opted to send a “letter to the editor,” and “responsible journalism” dictates that it be published. His potshot justifies the foregoing rejoinder.

By the way, the headline, “Secret Judicial Council Vote Rewrote Branch Governance Policy” was that which Horan supplied; it is not an “erroneous title” because it does, faithfully, reflect what Horan alleges in the article. A headline on an opinion piece summarizes the gist of the article. While Huffman might disagree with the content of the article, he lacks any reasonable basis for contesting the accuracy of the headline.

Now that Huffman has—by virtue of his rash insinuation of a departure from “responsible journalism” on the part of the MetNews— drawn our heightened attention to his remarks, we offer additional analysis.

In the first paragraph of the letter, Huffman notes that the governance policies were “posted on the California Courts web site.” The fact that the policies were, at some time, posted there provides nothing new; Horan, in his article, provides the address on the Internet at which the document is posted. Huffman implies, but does not state, that the policies were posted there prior to their enactment. Even if that is so, posting a proposed amendment to the Rules of Court on a website—with nothing drawing particular attention to the existence of the document there or calling for input—is a far cry from the traditional circulation of proposals for comment. Huffman has, in his brief letter, failed to respond directly or meaningfully to Horan’s assertion that the changes should have been circulated for comment, and has skirted other significant points raised by Horan.

In the second paragraph, Huffman proclaims that the new guidelines arrogate “no new authority to the...Administrative Director.” Yet, language is added specifying that the administrative director “performs...policymaking functions.” Horan asserts this is new. He maintains that policymaking is “a job the Council has always claimed for itself,” and comments: “This change alone may have accounted for the secrecy involved in the drafting and promulgation of the rules.” If the administrative director of the courts is presently possessed of policymaking powers, it would seem incumbent upon Huffman, in contradicting Horan, to point to the source of those powers.

In the third paragraph, Huffman speaks in the first person plural. This response also refers to “we”; it’s the traditional “editorial we.” We assume Huffman is employing neither the “editorial we” nor the “royal we.” So, on whose behalf is he speaking? Is the “we” the Fourth District Court of Appeal, the Judicial Council, or he and the other two mentioned in Horan’s article, Chief Justice Ronald George and Administrative Director William Vickrey?

Huffman is invited to elaborate on his response. As it stands, it plainly lacks substance. Others with views differing from those of Horan—or agreeing with them—are likewise invited to provide comments.