State ex rel. Veskrna v. Steel , 296 Neb. 581 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE EX REL. VESKRNA v. STEEL
Cite as 296 Neb. 581
State of Nebraska ex rel.
Les W. Veskrna, M.D.,
appellee and cross-appellant, v. Corey R. Steel,
State Court A dministrator, appellant
and cross-appellee.
___ N.W.2d ___
Filed May 5, 2017. No. S-16-118.
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 essen-
tial functions.
6. Constitutional Law. The powers of the three departments of govern-
ment 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 constitution-
ally committed to it.
8. Legislature: Constitutional Law: Statutes: Public Policy. The
Legislature exercises a power constitutionally committed to it by enact-
ing statutes to declare what is the law and public policy.
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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 pow-
ers 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 dele­
gated 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 con-
stitutional authority.
12. Constitutional Law: Courts: Legislature: Statutes. It is for the judi-
ciary 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 consti-
tutionally 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 confiden-
tiality 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 coor-
dinate 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
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STATE EX REL. VESKRNA v. STEEL
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Banister Amicus Brief Clinic, UCLA School of Law, for
amicus curiae Media of Nebraska, Inc.
Wright, Miller-Lerman, Cassel, Stacy, K elch, and Funke,
JJ., and R iedmann, Judge.
Per Curiam.
I. NATURE OF CASE
Corey R. Steel, the State Court Administrator, appeals
from a writ of mandamus ordering the disclosure, pursu-
ant 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
1
See Neb. Rev. Stat. § 84-712.03(1)(a) (Reissue 2014).
2
Neb. Rev. Stat. § 84-712.01(1) (Reissue 2014).
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public access to JBE records does not infringe on any power
essential to the existence, dignity, and functions of the court.
2. R equest and R esponse
Attached to the complaint was Veskrna’s email to Steel
requesting:
all records in any form, including PowerPoint presenta-
tions, handouts, notes, video and audio recordings, cor-
respondence, memoranda, email and other communica-
tions, regarding judicial education programs since July 1,
2012 on child custody and parenting time. This request
includes records, including email and other communica-
tions, 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, supervi-
sory and inherent authority over the state’s judicial sys-
tem. 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. Atty. 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 pro-
duce records . . . under the [Act] is subject to their super-
visory 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 ben-
efit 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
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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 inde-
pendently 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 A nswer 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 educa-
tion and that Steel had no corresponding clear duty to produce
such records.
4. Summary Judgment
Veskrna and Steel filed cross-motions for summary judg-
ment. At the hearing on the motions, Veskrna clarified that he
did not request records of the judges’ attendance at the JBE
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STATE EX REL. VESKRNA v. STEEL
Cite as 296 Neb. 581
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 pub-
lic, public records shall include all records and docu-
ments, 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 tra-
ditionally 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
3
Brief for appellee at 36.
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only recently adopted in 2004. Finally, Veskrna argued that
the open courts provision of the Nebraska Bill of Rights sup-
ported disclosure.
(b) Steel’s Arguments
Steel argued that the Committee’s informal policy and prac-
tice 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 crite-
ria 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, sanc-
tions for noncompliance, and exemptions.”
Section 1-512(A) states that the advisory committee shall
have authority to “[d]evelop and review standards and admin-
istrative rules addressing such issues as the criteria for man-
datory 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 govern-
ing the confidentiality of JBE records.
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STATE EX REL. VESKRNA v. STEEL
Cite as 296 Neb. 581
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 prop-
erly belonging to either of the others except as expressly
directed or permitted in this Constitution.
Neb. Const. art. V, § 1, provides:
The judicial power of the state shall be vested in a
Supreme Court, an appellate court, district courts, county
courts, in and for each county, with one or more judges
for each county or with one judge for two or more coun-
ties, as the Legislature shall provide, and such other
courts inferior to the Supreme Court as may be created by
law. In accordance with rules established by the Supreme
Court and not in conflict with other provisions of this
Constitution and laws governing such matters, general
administrative authority over all courts in this state shall
be vested in the Supreme Court and shall be exercised by
the Chief Justice. The Chief Justice shall be the execu-
tive head of the courts and may appoint an administrative
director thereof.
Steel maintained that the Nebraska Supreme Court has
inherent powers to determine its eternal essential operations
without interference and that this inherent power includes rule-
making relative to its essential functions, which Steel asserted
necessarily includes the power to limit public access to those
records. Steel asserted that the express administrative power
and inherent judicial power to establish JBE made the public
records statutes inapplicable to JBE records.
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STATE EX REL. VESKRNA v. STEEL
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Steel also asserted that the JBE records were protected
by the judicial deliberative process privilege. Although Steel
recognized that this privilege is generally associated with
judicial deliberations in a particular case, Steel contended that
it should extend to JBE records, because judicial education is
closely intertwined with the deliberative and decisionmaking
process by a judge. Steel asserted that judicial independence
“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 the judge’s
knowledge base.”
(c) Evidence Submitted
Veskrna submitted in support of his motion for summary
judgment the correspondence attached to his complaint and
described above, which was admitted without objection. Steel
submitted in support of his cross-motion for summary judg-
ment two affidavits, one from Carole McMahon-Boies, who is
the administrator of the JBE, and one from himself.
Veskrna objected to the affidavits. Veskrna asserted that
the exhibits supported new theories that were not disclosed
in Steel’s initial denial letter, which exhibits Veskrna claimed
were a violation of Neb. Rev. Stat. § 84-712.04(1)(a) (Reissue
2014). In addition, Veskrna objected on the grounds of founda-
tion, hearsay, and relevance, and because they contained legal
conclusions and arguments. With the exception of two sen-
tences in McMahon-Boies’ affidavit and one sentence and one
paragraph in Steel’s affidavit, the court overruled Veskrna’s
objections to the affidavits.
(i) Affidavit of McMahon-Boies
As admitted into evidence, McMahon-Boies averred that
“[i]t is the longstanding position and policy of the Committee
that [JBE] records are not public records and shall, at all
times, be kept confidential.” McMahon-Boies further stated
that attend­ance at educational sessions for judges is “tightly
screened” and that “[n]o outside people are allowed to attend.”
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STATE EX REL. VESKRNA v. STEEL
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Access to the educational materials is likewise “tightly con-
trolled.” McMahon-Boies opined that “[j]udges exhibit a dif-
ferent demeanor when individuals other than judges, staff or
educators participate in the educational sessions,” explain-
ing that “[j]udges are less likely to ask questions or pro-
vide commentary when they cannot be assured of complete
confidentiality.”
In paragraph 12 of her affidavit, McMahon-Boies expressed
her belief that “the [JBE] materials at issue here are closely
tied to the deliberative process that forms the basis of judi-
cial decisions” and that “[d]isclosing the type of education
provided, educators’ identities, methodologies and underlying
philosophies, and the specific scenarios presented and analyzed
during judicial educational sessions, could provide third parties
access to the inner workings of a judge’s thought processes in
deciding particular cases.”
Finally, McMahon-Boies opined that “[r]equiring the release
of the requested records would undermine the ability of the
Nebraska Supreme Court to educate its judges, which in the
end benefits no one.”
(ii) Affidavit of Steel
Steel stated that “[i]t is the longstanding position and pol-
icy of the Committee that [JBE] records are not public records
and shall, at all times, be kept confidential.”
(d) Court’s Order on
Summary Judgment
As an initial matter, the court rejected Veskrna’s suggestion
that Steel had failed to raise the issue that the JBE records
were not public records under § 84-712.01. It found that
such issue was affirmatively presented in Steel’s letter deny-
ing Veskrna access to the records. The court recognized that
Neb. Const. art. V, § 1, provides that the Nebraska Supreme
Court is vested with general administrative authority over all
courts in this state and that the Nebraska Supreme Court has
inherent power to establish and administer JBE, as a matter
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naturally within its orbit. However, the district court noted that
Nebraska case law has recognized the applicability of the pub-
lic records laws to the judicial branch.4 The court reasoned that
it does not always violate separation of powers principles for
the Legislature to determine what judicial records are subject
to public disclosure. It also concluded that the judicial delib-
erative process privilege is a recognized privilege applicable
to this case.
In considering the JBE records at issue, the court con-
cluded that it could not grant summary judgment to either
party, because the ultimate determination depended on a closer
examination of each document. The court found it “significant”
that our court has not adopted any rule concerning the confi-
dentiality of JBE records. The district court concluded that a
“tacit understanding between [Steel] and [McMahon-Boies] is
not enough to allow this Court to find that all of the records
requested are confidential and beyond access by the public due
solely to the Court’s inherent authority.”
With respect to this court’s authority to withhold docu-
ments based upon the deliberative privilege, the district court
concluded that any records falling under such privilege could
not be compelled into disclosure by the public disclosure
laws. But the court could not say that all the requested doc-
uments fell under such privilege without examining them.
Application of the judicial deliberative privilege required a
fact-specific inquiry.
(e) Court’s Order on
Writ of Mandamus
After examining the 12 records given to the court for in
camera review, the court determined that all but one part
of one document was a public record subject to disclosure
under § 84-712.01. Relying upon and applying the deliberative
4
See, State ex rel. Unger v. State, 293 Neb. 549, 878 N.W.2d 540 (2016);
State v. Ellsworth, 61 Neb. 444, 85 N.W. 439 (1901); State, ex rel. Griggs,
v. Meeker, 19 Neb. 106, 26 N.W. 620 (1886).
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process privilege, the court concluded that an email commu-
nication from a judge to McMahon-Boies, which the court
described as “commenting on a substantive area of the law”
over which “the judge . . . routinely makes decisions,” was
privileged under the deliberative process privilege. The court
ordered release of the records after a redaction of that email.
However, the court ordered that all the documents—found in
exhibit 4—be sealed pending review on appeal of the district
court’s determination. This court has unsealed the documents
and has reviewed the same in camera for purposes of deciding
the merits of the case.
Exhibit 4 consists of the following documents: the agenda of
the 2012 fall judges meeting; a parenting plan document which
identifies the objectives of the presentation; an outline of the
presentation regarding parenting time; state statutes relating to
the Parenting Act; emails between McMahon-Boies and a pre-
senter concerning logistics and the presentation; an email from
a district judge which was redacted; an email regarding the fall
seminar for 2014 and the speaker for the fall conference; an
email with a computer presentation, slides, and handouts of the
presenter at the fall conference for 2014; an email regarding
travel expense information; an email with a fall confirmation
agenda; and past conference communications between the pre-
senter and McMahon-Boies.
III. ASSIGNMENTS OF ERROR
Steel assigns, summarized and restated, that the district court
erred in (1) denying Steel’s motion for summary judgment and
issuing the writ of mandamus requested by Veskrna’s com-
plaint, (2) concluding the JBE records constitute public records
as defined by § 84-712.01(1), (3) concluding the JBE records
requested by Veskrna are not facially protected from disclosure
under the judicial deliberative process privilege, and (4) award-
ing attorney fees and costs.
Veskrna cross-appealed from the court’s failure to sustain his
objection to the entirety of paragraph 12 of McMahon-Boies’
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affidavit. He did not cross-appeal the court’s ruling that the
judicial deliberative process privilege applied to one document
that the court redacted.
IV. STANDARD OF REVIEW
[1-3] Mandamus is a law action, and it is an extraordinary
remedy, not a writ of right.5 In a bench trial of a law action, the
trial court’s factual findings have the effect of a jury verdict,
and we will not disturb those findings unless they are clearly
erroneous.6 Whether to grant a writ of mandamus is within the
trial court’s discretion.7
[4] 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.8
V. ANALYSIS
A person denied access to a public record may file for
speedy relief by a writ of mandamus under § 84-712.03.9 A
party seeking a writ of mandamus under § 84-712.03 has the
burden to satisfy three elements: (1) The requesting party is a
citizen of the state or other person interested in the examina-
tion of the public records, (2) the document sought is a public
record as defined by § 84-712.01, and (3) the requesting party
has been denied access to the public record as guaranteed
by Neb. Rev. Stat. § 84-712 (Reissue 2014).10 If the request-
ing party satisfies its prima facie claim for release of public
5
State ex rel. Unger v. State, supra note 4.
6
See Steckelberg v. Nebraska State Patrol, 294 Neb. 842, 885 N.W.2d 44
(2016).
7
State ex rel. Unger v. State, supra note 4.
8
See, Moye, O’Brien, etc. v. National R.R. Passenger, 376 F.3d 1270 (11th
Cir. 2004); Freudenthal v. Cheyenne Newspapers, Inc., 233 P.3d 933
(Wyo. 2010).
9
State ex rel. Unger v. State, supra note 4.
10
Id.
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records, the public body opposing disclosure must show by
clear and convincing evidence that the document sought is
exempt from disclosure.
Section 84-712.01(1) broadly defines public records as
including all records and documents of or belonging to any
branch “[e]xcept when any other statute expressly provides
that particular information or records shall not be made public
. . . .” Twenty statutory exemptions to disclosure are enumer-
ated in Neb. Rev. Stat. § 84-712.05 (Cum. Supp. 2016), and
an exemption for certain records of the federal government is
described in Neb. Rev. Stat. § 84-712.08 (Reissue 2014).
Steel asserts that none of the JBE records requested by
Veskrna under § 84-712.03 were public records as defined by
§ 84-712.01, because another statute expressly provides that
particular information or records shall not be made public. He
does not claim that the JBE records fall under an exemption set
forth by § 84-712.05 or § 84-712.08, but relies on § 24-205.01
and an unwritten Committee policy.
Steel alternatively challenges, under separation of powers,
the constitutionality of the Legislature’s ability to determine
that JBE records are public, when the Committee has deter-
mined that they are not. He argues that the inherent authority
of the court and the integrity of the judiciary require that all
JBE records be confidential.
Veskrna cross-appeals. Veskrna does not challenge the
court’s rulings recognizing the judicial deliberative process
privilege or its determination to redact the email from the
records, but asserts that the court erred in entering into evi-
dence paragraph 12 of McMahon-Boies’ affidavit.
As will be explained in further detail below, we affirm
the judgment of the district court. As a matter of statutory
interpretation, we reject Steel’s argument that exhibit 4 is
excluded from the statutory definition of public records. A stat-
ute authorizing the Committee to develop for our review rules
addressing the confidentiality of JBE records is not in itself
a “statute expressly provid[ing] that particular information or
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records shall not be made public.”11 The Committee has not yet
developed for our review such rules, and we have not actually
adopted any rule relating to the confidentiality of JBE records.
As concerns the constitutionality of the application of the
public records statutes to exhibit 4, we find that its disclosure
does not unduly interfere with any essential function of the
judicial branch.
1. Public R ecords as Defined
by § 84-712.01
We first analyze Steel’s argument that as a matter of statu-
tory interpretation, exhibit 4 is not a public record under
§ 84-712.01(1). Section 84-712.01(1) states that “[e]xcept
when any other statute expressly provides that particular infor-
mation or records shall not be made public, public records shall
include all records and documents . . . of or belonging to . . .
any . . . branch . . . .” The parties do not contest or question
whether the records contained in exhibit 4 are “of or belonging
to” this branch. The only issue presented is whether there is a
“statute expressly provid[ing] that [JBE] records shall not be
made public.”
Section 24-205.01(2) states that the Committee “may . . .
[d]evelop for review by the Supreme Court standards and poli-
cies . . .” for education and training of all judges and nonjudge
judicial branch employees and, as to education for judges,
develop for review by this court standards and rules and
regulations addressing the “confidentiality of records.” Court
rule § 1-512(A) similarly provides that the Committee has the
authority to develop for approval of this court rules relating to
the confidentiality of records.
Steel argues that in light of § 24-205.01, the Committee’s
unwritten policy of keeping all JBE records confidential
qualifies under the exception set forth in § 84-712.01(1)
to the definition of public records. We disagree. A statute
11
See § 84-712.01(1).
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acknowledging our power to adopt rules pertaining to the con-
fidentiality of JBE records does not, standing alone, “expressly
provide[],” under § 84-712.01(1) that JBE records shall not be
made public.
Rather, § 24-205.01(2)(a) is a legislative recognition that
this court has the authority to establish the confidentiality of
such records and it leaves to the Committee the task of imple-
menting any adopted rules regarding the confidentiality of
JBE records.
An unwritten policy of the Committee to consider JBE
records as confidential is not sufficient to establish the con-
fidentiality of such records for purposes of the public records
laws. There is a statute that contemplates promulgation by this
court of rules regarding the confidentiality of JBE records, but
no such rules have yet been adopted.
We expressly point out that this opinion does not limit the
ability of this court to adopt in the future rules expressly regu-
lating the confidentiality of JBE materials.
2. Separation of Powers
[5] We turn next to Steel’s argument that it would violate
separation of powers principles to accede to any statutory
scheme that mandates the disclosure of our JBE records. We
agree that whether or not we have adopted any court rules
concerning the confidentiality of our JBE 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. We
simply find no undue interference in disclosing the records
at issue.
The question presented by Steel is whether the application
of the public records statutes to the JBE records contained in
exhibit 4 violates the separation of powers of the three branches
of government as set forth in the Nebraska Constitution. In
answering this question, we focus on the judicial deliberations
privilege and on generally applicable separation of powers
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principles as they pertain to the overlapping exercise of two
branches’ proper functions. We are not here presented with
any other privilege; nor are we presented with a question of
the improper delegation of a power solely vested in another
branch.12 We make no comment in this opinion on legal ques-
tions not presented that might be raised in an appropriate case
concerning the application of the public records statutes to
other records.
[6] 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 exis-
tence of a similar power elsewhere or express limitations in
the Constitution.13 Deciding whether the Nebraska Constitution
has committed a matter to another governmental branch, or
whether the branch has exceeded its authority, is a “delicate
exercise in constitutional interpretation.”14
[7] By creating and regulating JBE, we are exercising a
power constitutionally committed to us. Part of that exercise
necessarily includes managing JBE records. Neb. Const. art. V,
§ 1, gives to the judiciary the general administrative authority
over all courts in this state. Other state courts have recog-
nized the responsibility of the judiciary to “manage its own
house”15 and have stated that it is the province of the judiciary
to decide whether special training for a particular area of the
law is appropriate.16 This court has previously recognized the
inherent judicial power to do whatever is reasonably necessary
12
See In re Petition of Nebraska Community Corr. Council, 274 Neb. 225,
738 N.W.2d 850 (2007); Board of Regents v. Exon, 199 Neb. 146, 256
N.W.2d 330 (1977).
13
See State v. Joubert, 246 Neb. 287, 518 N.W.2d 887 (1994).
14
Adams v. State, 293 Neb. 612, 617, 879 N.W.2d 18, 22 (2016).
15
Attorney General v. Waldron, 289 Md. 683, 695, 426 A.2d 929, 936
(1981).
16
Fiedler v. Wisconsin Senate, 155 Wis. 2d 94, 454 N.W.2d 770 (1990).
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for the proper administration of justice, including supervisory
power over the courts.17
[8,9] However, the Legislature exercises a power constitu-
tionally committed to it by enacting statutes to declare what
is the law and public policy.18 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. Such expressed
policy in favor of public disclosure of governmental records
has been in effect since our State’s founding.19
[10] The three branches sometimes overlap in the exer-
cise of their constitutionally delegated powers. This over-
lap may sometimes result in the three departments having
a limited partial agency in or control over the acts of each
­other.20 But the constitutional principle of separation of pow-
ers 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 essen-
tial functions.21
[11] An analysis of the overlapping exercise of consti-
tutionally delegated powers focuses on the extent to which
one branch is prevented from accomplishing its constitution-
ally assigned functions, balanced against the other branch’s
need to promote the objectives within its constitutional
17
See In re Petition of Nebraska Community Corr. Council, supra note 12.
18
Stew. v. Bennett, 273 Neb. 17, 727 N.W.2d 424 (2007).
19
See Rev. Stat. ch. 44, § 1, p. 297 (1866).
20
See Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d
714 (1989).
21
See, Wellness Intern. Network, Ltd. v. Sharif, ___ U.S. ___, 135 S. Ct.
1932, 191 L. Ed. 2d 911 (2015); Cactus Wren v. Dept. of Bldg. & Fire
Safety, 177 Ariz. 559, 869 P.2d 1212 (Ariz. App. 1993); Brierton v.
Department of Motor Vehicles, 140 Cal. App. 4th 427, 44 Cal. Rptr. 3d
480 (2006); State v. Speedis, 350 Or. 424, 256 P.3d 1061 (2011); State ex
rel. Met. Pub. Defender v. Courtney, 335 Or. 236, 64 P.3d 1138 (2003);
Brady v. Dean, 173 Vt. 542, 790 A.2d 428 (2001).
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authority.22 Other states, in determining the proper balance
between the coordinate branches, have held that the court
should consider the following factors: (1) the essential nature
of the power being exercised, (2) the degree of control by one
department over another, (3) the objective sought to be attained
by that branch’s exercise of power, and (4) the practical result
of the blending of powers as shown by actual experience over
a period of time.23
[12] 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.24 But the judiciary should
“‘“proceed cautiously”’ in relying on ‘inherent authority’” and
must give “‘due consideration for equally important executive
and legislative functions.’”25 Determining the constitutional
limits of the Legislature’s plenary lawmaking authority in the
context of the separation of powers between the judicial func-
tion and power and the legislative one is a difficult endeavor
that must proceed on a case-by-case basis.26
Under different facts concerning the overlapping powers
of the Legislature and judiciary, we have found a balance
that allows each branch to accomplish its essential functions
without usurping the other. For instance, we have held that
the legislative branch has the right to prescribe the admissi-
bility of certain categories of evidence in a court of law, but
22
See Nixon v. Administrator of General Services, 433 U.S. 425, 97 S. Ct.
2777, 53 L. Ed. 2d 867 (1977).
23
16 C.J.S. Constitutional Law § 279 (2015). See, also, e.g., J.W. Hancock
Enterprises v. Ariz. St. Reg., 142 Ariz. 400, 690 P.2d 119 (Ariz. App.
1984); State, ex rel., v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976).
24
U’Ren v. Bagley, 118 Or. 77, 245 P. 1074 (1926).
25
State v. M.D.T., 831 N.W.2d 276, 282 (Minn. 2013).
26
See Slack Nsg. Home, Inc. v. Department of Soc. Servs., 247 Neb. 452,
528 N.W.2d 285 (1995), disapproved on other grounds, Betterman v.
Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007).
See, also, e.g., State v. Stratton, 220 Neb. 854, 374 N.W.2d 31 (1985).
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that it is solely a judicial function to determine whether the
evidence is of probative value and determine the weight, if
any, to be given such evidence.27 And we have held that the
Legislature, in the interest of protecting the public through the
proper exercise of its police power, can pass laws prescrib-
ing the minimum requirements for admission to the bar, but
it cannot interfere with the power of this court to establish
by rule higher qualifications for admission of applicants as
deemed necessary for the proper administration of our judi-
cial functions.28
Steel argues that judicial education is “‘essential’” to the
integrity of our judicial system and that therefore, the absolute
confidentiality of all JBE records is likewise necessarily essen-
tial to the integrity of our judicial system. We have already
explained that judicial education is an important judicial func-
tion deriving from the Nebraska Constitution.
But it does not necessarily follow that all records created in
the course of judicial education must be confidential to pre-
serve this important function. We observe that we have in the
past applied public records statutes to records created in the
course of essential judicial acts, implicitly drawing a distinc-
tion between the importance of the underlying activity and the
importance of keeping the records created during that activity
confidential. As an example, in State v. Ellsworth,29 we held
that a writ of mandamus should have been granted compelling
a judge to disclose the docket entry of his judgment.
If each branch of government could shield its records
simply by appealing to the fact that they were created in the
27
See, In re Interest of Constance G., 254 Neb. 96, 575 N.W.2d 133 (1998);
State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987), overruled on
other grounds, State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000); State
v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839 (1978).
28
See State, ex rel. Ralston, v. Turner, 141 Neb. 556, 4 N.W.2d 302 (1942).
29
State v. Ellsworth, supra note 4. See, also, State ex rel. Unger v. State,
supra note 4; State, ex rel. Griggs, v. Meeker, supra note 4.
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course of any number of essential branch functions, the pro-
tections of the public interest embodied in the public records
statutes would be a nullity. This would upset the proper bal-
ance between the three branches of government. We note with
approval that the U.S. Supreme Court has rejected overly
broad claims of executive privilege to shield records from
similar public disclosure laws.30 In United States v. Nixon,31
the Court held that a broad, absolute privilege based on the
executive branch’s “undifferentiated claim of public interest
in the confidentiality of such conversations” would “gravely
impair the role of the courts.”
We also note with approval that the Court in Nixon
observed, “Whatever their origins, these exceptions to the
demand for every man’s evidence are not lightly created
nor expansively construed, for they are in derogation of the
search for truth.”32 We have always supported transparency
and the search for the truth.33 Generally speaking, the legisla-
tive and judicial branches are not at cross-purposes in sup-
porting access to public records. We have, under common-law
principles, supported public access to judicial records and
documents, although we have also recognized that no right of
public access is absolute.34
[13] We conclude that the extent that legislatively mandated
disclosure of another branch’s records impairs that branch’s
constitutionally assigned functions depends on both the impor-
tance of the underlying activity and the consequences to that
activity of disclosing the particular records requested. There
30
See, e.g., Nixon v. Administrator of General Services, supra note 22.
31
United States v. Nixon, 418 U.S. 683, 706, 707, 94 S. Ct. 3090, 41 L. Ed.
2d 1039 (1974).
32
Id., 418 U.S. at 710.
33
See, State v. Cribbs, 237 Neb. 947, 469 N.W.2d 108 (1991); State v. Ross,
186 Neb. 280, 183 N.W.2d 229 (1971).
34
See State v. Cribbs, supra note 33. See, also, United States v. Nixon, supra
note 31.
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must be a consideration of the practical result of disclosure
rather than simply the general importance of the forum in
which the records were created.
While we agree with Steel that separation of powers would
be violated by legislatively mandated disclosure of docu-
ments falling under the judicial deliberations privilege, we
find the privilege inapplicable to the documents contained
in exhibit 4. The judicial deliberations privilege is a privi-
lege that “protects the deliberative processes of a judge from
intrusion.”35 The privilege has never before been formally
adopted by our court, but has unquestionably firm roots in our
nation’s history.36
The judicial deliberations privilege implicates separation of
powers because an examination of a judge’s mental processes
would be “destructive of judicial responsibility.”37 Indeed,
Veskrna does not contest that any document falling under the
judicial deliberations privilege would be constitutionally pro-
tected from a legislative mandate that it be disclosed.
“Human experience teaches that those who expect public
dissemination of their remarks may well temper candor with a
concern for appearances and for their own interests to the detri-
ment of the decisionmaking process.”38 Without such candor in
our deliberative process, we cannot perform our essential func-
tion of deciding the cases before us.
But, similar to the executive privilege demarcated in United
States v. Nixon, the confines of the judicial deliberations
35
Charles W. Sorenson, Jr., Adopting the Judicial Deliberations Privilege:
Making Explicit What Has Been Implicit, 95 (No. 4) Mass. L. Rev. 243,
243 (2014).
36
See, Robert S. Catz & Jill J. Lange, Judicial Privilege, 22 Ga. L. Rev. 89
(1987); Charles W. Sorenson, Jr., Are Law Clerks Fair Game? Invading
Judicial Confidentiality, 43 Val. U. L. Rev. 1 (2008).
37
United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 85 L. Ed. 1429
(1941).
38
United States v. Nixon, supra note 31, 418 U.S. at 705.
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privilege must not be so broad that it upsets the balance of a
workable government comprised of overlapping powers.39
[14] We find that the proper constitutional balance
requires a narrowly tailored, albeit absolute, judicial delib-
erations privilege. The description of this privilege in In re
Enforcement of Subpoena40 is most apt, and we hereby adopt
it. The privilege
covers a judge’s mental impressions and thought proc­
esses in reaching a judicial decision, whether harbored
internally or memorialized in other nonpublic materials.
The privilege also protects confidential communications
among judges and between judges and court staff made
in the course of and related to their deliberative proc­
esses in particular cases.41
From our examination of the records in this case, we con-
clude they do not fall under the judicial deliberations privilege
just described. Fundamentally, the records do not relate to par-
ticular cases under deliberation.
Finding that the judicial deliberations privilege does not
apply to the documents contained in exhibit 4 does not end
our separation of powers analysis. As we have explained, the
ultimate inquiry when faced with the overlapping exercise of
constitutionally delegated powers is 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.
[15] We do not hold that the judicial deliberations privilege
is either the floor or the ceiling of separation of powers con-
flicts between the judiciary and the Legislature as relate to the
public records statutes. Neither do we accept any clear demar-
cation in a separation of powers analysis between “chambers
39
United States v. Nixon, supra note 31.
40
In re Enforcement of Subpoena, 463 Mass. 162, 972 N.E.2d 1022 (2012).
41
Id. at 174, 972 N.E.2d at 1033.
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records” and “administrative records” independent of the con-
tent of those records.42 Whether preservation of the essential
functions of the judicial branch requires the confidentiality
of JBE records is to be determined on a case-by-case basis
in accordance with existing rules promulgated by this court,
the judicial deliberations privilege, and state constitutional
principles respecting the proper balance between the coordi-
nate branches.
Examining the documents contained in exhibit 4, we can
find through their disclosure no meaningful impairment of our
constitutionally assigned functions. The JBE materials con-
tained in exhibit 4 have an exceedingly tenuous connection
to any judge’s mental processes. Veskrna did not ask to know
which judges attended the JBE sessions at issue. He did not ask
for any information concerning questions or comments made
by the attending judges.
The presenters’ identities and the content of their presenta-
tions, alone, does not reveal the attending judges’ mental proc­
esses any more than an examination into the classes that the
judges took in law school. Thus, disclosing the JBE records
in this case does not create a meaningful risk of tempering the
candor essential to the judicial decisionmaking process. Steel
presents no other argument that disclosure of these records
unduly interferes with our essential functions, and we can
find none.
Having found no unacceptable intrusion into our judicial
branch activities through the disclosure of exhibit 4, we affirm
the judgment of the lower court, including its decision to
redact a judge’s internal email. The ruling redacting the email
was not assigned as error in Veskrna’s cross-appeal. Having
affirmed the writ, we need not address Veskrna’s cross-appeal
concerning the admissibility of paragraph 12 of McMahon-
Boies’ affidavit.
42
See brief for appellee at 36.
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This court makes no statement about the confidentiality of
other JBE records in light of our constitutionally delegated
powers or the adoption of an official court rule. And we do
not make any statement related to questions concerning JBE
records not properly preserved and presented in this appeal.
Our holding in this case does not limit the power of this
court under article II, § 1, and article V, § 1, of the Nebraska
Constitution to regulate the confidentiality of JBE materials,
and it does not, in particular, limit that power to the confines
of the judicial deliberative privilege.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court granting Veskrna access to the records found
in exhibit 4, with the specified email redacted, and its order
awarding costs and attorney fees.
A ffirmed.
Heavican, C.J., not participating.