In Yesterday's Courant, Mitchell W. Perlman, former Executive Director of the Connecticut Freedom of Information Commission, provided a rebuttal on the Op-Ed Page. While I still agree with Justice Borden (and my discosure of having taken the Justice's Statutory Interpretation class still applies), Mr. Perlman is persuasive and worth a look:
Justice Borden's argument against this constitutional amendment was two-fold. First, he argued that the recent scandal that precipitated the call for such an amendment had nothing to do with the judicial branch's power to make rules governing the courts.
Second, he maintained that such an amendment is unnecessary now since internal reforms are already under way that, if implemented, will provide for far greater transparency than is currently the case.
It was a good argument, articulately presented. But I think it falls short on both accounts.
The fact is, there is no guarantee without a constitutional amendment.
Why is this so important? In effect, Justice Borden is attempting to establish within the judicial branch, by rule and policy, something akin to our Freedom of Information Act. But alleged violations of these provisions would not be reviewable by, or appealable to, any independent authority, such as the Freedom of Information Commission. Nor would any rule change be subject to legislative approval, as it is in the federal system.
Thus, any newfound transparency would be exclusively at the sufferance of the very judges who, in the future, may decide to close records or proceedings from public scrutiny.
Go read the whole thing and let me know what you think in the comments!