What will it take to force the Judicial Department to conform fully with the concept of open government?
State Rep. Michael P. Lawlor, co-chairman of the legislature’s Judiciary Committee, suggests that a constitutional amendment may be the ultimate solution, a scenario that had little support when newspaper and television editors of Connecticut proposed it several years ago.
But now that the judges have again thwarted a legislative effort to impose rules on them by statute, the notion of a constitutional approach may make sense.
Chris Powell, managing editor of the Journal Inquirer in Manchester, long has advocated a constitutional amendment because he believes that any law coming out of the legislature would be vulnerable to the courts’ overturning the statute. Judges can interpret statutes any way they wish, he argues, but a constitutional amendment could carry the day for the public’s right to know how the courts are operating.
State Sen. Andrew J. McDonald, a Stamford Democrat, who is co-chairman of the Judiciary Committee, concurs that something stronger must happen. A constitutional amendment is a good idea, he says.
”It’ll certainly be on the table next year. We’ve tried for two years to come up with something. It’s upsetting and distressing,” McDonald told reporter Ken Dixon of the Connecticut Post.
Skeptical of Judicial Branch
For the second legislative session in as many years, a bill to make the Judicial Branch a more open operation, died in the House. Lawlor was angry because the judges’ department had not objected to the bill, indicating they wouldn’t oppose it when it came to a vote. But when the measure passed the Senate and came to the House, the judicial department sent out its emissaries in droves to oppose the bill.
Melissa Farley, a spokesman for the Judicial Branch, said the department first misread the proposed law and later realized that the bill, in its opinion, would usurp some of the judges’ constitutional authority.
This interpretation of what happened was viewed with skepticism by both editors and legislators.
An aggravated Lawlor, an East Haven Democrat, said, “Every time we try to do something, at the end of the day we’re told it is unconstitutional, even though last week the Judicial Branch took no position on it, then kind of came and said, ‘Well, actually now that we reread it, we think it’s unconstitutional.’ ”
The department’s position, of course, is that it has opened many elements of its operation already — committee meetings, dockets of scheduled court cases, online information about cases. It’s a long list and Chief Justice Chase Rogers and her colleagues can take pride in their efforts to be more open.
Let Voters Decide
But when it comes to the question as to who sets the rules, the judges balk. All the joint advisory committees in the world working with the television and newspaper editors and reporters won’t overcome the perception that the judiciary simply cannot live with the freedom of information law.
The Judicial Department is adroit at making lesser concessions, but it rails against the very idea that the legislature has the authority to make rules that apply to the judges, just as the legislature enacts rules which its members and the executive branch must follow.
Over the past several years, secret cases and a former chief justice’s interference in the confirmation process of a nominee to succeed him strengthened resolve in the Judiciary Committee to put something in place. A constitutional amendment wasn’t necessary, Lawlor and McDonald argued. The problem could be fixed with a statute.
That was their attitude before the judges bit them again with shenanigans. By their last-minute antics, the leaders of the judiciary branch have again angered the co-chairmen of the legislative committee that deals with court administration.
Now there may be genuine determination to put the question to the voters to consider.
Morgan McGinley is a former editorial page editor for The Day, now retired.
This op-ed was originally published in The Day.
