Will Courts Really Open Up?

THE CHRIS POWELL COLUMN

Sunday, September 24, 2006


CONNECTICUT'S COURTS GET
A CHANCE TO EMBRACE ACCOUNTABILITY

By CHRIS POWELL

Connecticut's Judicial Department may have mixed motives as it considers increasing its openness and accountability to get out from under the scandal of the recently retired chief justice, William J. Sullivan. But results, not motives, will matter the most, and the report and proposals of the Judicial Department's Public Access Task Force are a revolution for openness and accountability.

The task force's report is revolutionary not just for its recommendations for opening the courts but also, and perhaps more so, for its general attitude and the attitude of the judges most responsible for it -- the state Supreme Court's acting chief justice, David M. Borden, who commissioned the task force, and the Supreme Court justice who chaired it, Richard N. Palmer. For the task force began with the premise that the judiciary is not an end in itself, the proprietary enterprise of its operators, but a crucial part of democracy, something in which all citizens share the greatest interest. Facing such an attitude, everything secretive and unaccountable in the courts will be in trouble.

The task force, consisting of judges, lawyers, journalists, and the former head of the state university system, made dozens of recommendations, but the most important seem to be these:

-- To admit the public to the meetings of the judicial rules committees and the annual judicial convention, where rules for court operations have been decided in secret and where judges legislate but never have to account for their individual votes. At Justice Borden's direction, the most recent judicial convention [ITALICS] was [END ITALICS] open to the public, and Borden warned his colleagues that if they didn't open up more, the elected branches of the government, the governor and the General Assembly, might start exercising their own constitutional responsibility for the courts.

-- To put criminal docket and conviction records on the Internet. The right to open courts means little if court schedules are not accessible, and convictions hardly count if the public can't easily discover whether, for example, a prospective baby sitter is a child molester or a job applicant is a thief.

-- To ask the General Assembly to legislate disclosure of basic information about dismissals, acquittals, and suspended prosecutions in criminal cases. Information technology now turns arrests and accusations into virtually permanent and public records almost instantly but not information about the resolution of a case that contradicts the original charges. Disclosing all case outcomes is vital to justice and history.

-- To ask the General Assembly to legislate disclosure of basic information about criminal cases that have been referred to pre-trial diversion programs. The secrecy of these programs now undoes much accountability for serious crimes. However leniently a court disposes of a case, its outcome should be public.

-- To have the courts refrain from automatically sealing criminal case files upon a defendant's application for a pre-trial diversion program.

-- To disclose financial affidavits in divorce cases, those affidavits being evidence on which judgment is based and without which judgment cannot be evaluated.

-- To experiment with broadcasting criminal proceedings in one judicial district. Since broadcasting equipment is now unobtrusive, why should the public have to sacrifice a day's pay to be able to attend court?

-- To affirm the public's right to take notes in court, a right that was denied a few months ago by the fit of pique of a judge in Hartford Superior Court.

-- To establish a committee of judges and journalists to provide quick review of and possible redress for possibly improper denial of access to court records and proceedings.

As Justice Borden suggested in his remarks at the last judicial convention, the judiciary's motive here is not just accountable government but also to discourage the governor and General Assembly from confronting the big constitutional issue on which they long have defaulted: the issue of who makes the rules for the courts.

The judges seem to want to defend their claim to rule-making power at all costs, even though it is the power to legislate and thus properly belongs to the legislature and the governor. Further, any openness the judiciary grants to the public by sufferance now amid the Sullivan scandal could be withdrawn someday upon a change in the judicial administration. And Justices Borden and Palmer may face much resistance when the task force's proposals are presented for approval at the next judicial convention.

So Connecticut needs open courts as a matter of law, not a matter of judicial sufferance, and this probably can be achieved only with an amendment to the state Constitution trumping the judiciary's pretensions to the rule-making power.

But as a practical matter, a judiciary that really wants to be open and accountable, that wants to be understood and respected, and that wants to heed the state Constitution's demand that "all courts shall be open" will be more open and accountable and will become still more so over time.

If Justices Borden and Palmer persuade their colleagues of this duty, they will have done heroic work.

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Chris Powell is managing editor of the Journal Inquirer in Manchester, Conn.