State ex rel. Veskrna v. Steel
296 Neb. 581
Neb.2017Background
- Petitioner Les W. Veskrna requested Judicial Branch Education (JBE) records (presentations, presenters, materials) on child custody/parenting time since July 1, 2012; State Court Administrator Corey Steel denied the request claiming confidentiality.
- Steel relied on an unwritten Committee policy and statutory language authorizing the Committee to develop rules addressing confidentiality, plus separation-of-powers and a claimed judicial deliberative process privilege.
- Veskrna filed for a writ of mandamus under Nebraska’s public records statutes; both parties moved for summary judgment and 12 documents were submitted for in camera review.
- The district court found the public records law applies to the judiciary, that the judicial deliberative privilege can apply but is fact-specific, reviewed exhibit 4 in camera, and ordered disclosure of all but a redacted judge email.
- Steel appealed, arguing (1) the records are excluded from the public-records definition because another statute and Committee policy make them confidential, and (2) separation-of-powers and the judicial deliberative privilege bar disclosure.
- The Nebraska Supreme Court affirmed: no statute presently "expressly provides" JBE records shall be nonpublic, the judicial deliberations privilege was inapplicable to most documents, and disclosure did not unduly impair judicial functions.
Issues
| Issue | Plaintiff's Argument (Veskrna) | Defendant's Argument (Steel) | Held |
|---|---|---|---|
| Are the requested JBE records "public records" under §84-712.01? | Records are public; no statutory exemption applies. | Committee’s statutory authority and unwritten policy make JBE records nonpublic under the "except when any other statute expressly provides" clause. | Held: Records are public; §24-205.01 merely authorizes rulemaking and does not itself expressly make records nonpublic. |
| Can separation of powers bar application of public records law to JBE materials? | Public records law applies; disclosure here does not impair judicial functions. | Legislative/public-records mandate intrudes on judicial power to manage JBE and would impair judicial independence. | Held: Disclosure did not unduly interfere with essential judicial functions on these facts; separation-of-powers claim rejected. |
| Does the judicial deliberative process privilege shield the records? | Privilege applies only where records reveal judge mental impressions or deliberations; most JBE materials do not. | Privilege extends to JBE because education is intertwined with judicial deliberation; materials must be confidential. | Held: Court adopts a narrow, absolute deliberative privilege limited to judges’ mental impressions and intra-judge/staff confidential communications in particular cases; exhibit 4 largely not covered. |
| Was the district court’s redaction and award of costs appropriate? | Requested full disclosure of non-privileged records and costs. | Challenged relief and admissibility of affidavit paragraph. | Held: District court properly redacted one judge email as privileged; award of costs/fees affirmed; no reversible error on affidavit ruling presented. |
Key Cases Cited
- State ex rel. Unger v. State, 293 Neb. 549 (2016) (public-records mandamus framework and burdens)
- State v. Ellsworth, 61 Neb. 444 (1901) (historical recognition of applying public disclosure to judicial records)
- United States v. Nixon, 418 U.S. 683 (1974) (limits on broad governmental privileges and need for narrow construction)
- In re Enforcement of Subpoena, 463 Mass. 162 (2012) (adopted formulation of judicial deliberations privilege protecting judges’ mental impressions)