After controversy arose over proposed pro se divorce forms, a lobbyist has asked the Texas Supreme Court to require two groups involved in drafting the forms to comply with open government laws. But both groups’ chairmen say they already allow people to attend their meetings and requiring compliance with the Texas Open Meetings Act (TOMA) could create problems.
On Feb. 7, Texas Family Law Foundation lobbyist Steve Bresnen wrote to the high court on behalf of the foundation and the State Bar of Texas Family Law Section. He asked the justices to amend their administrative orders creating the Texas Access to Justice Commission (TAJC) and the Uniform Forms Task Force to require both groups to comply with open government laws.
Bresnen, an Austin solo, wants the task force and the commission to post advance notices of meetings; meet in public locations; allow the public to listen to telephone meetings; allow public comment during meetings; and pre-publish their recommendations before submitting them to the Supreme Court.
The high court does not have to grant the request, but it could choose to do so. Riggs Aleshire & Ray shareholder Bill Aleshire says neither the Open Meetings Act nor the Texas Public Information Act (TPIA) applies to the judiciary. He notes that the TPIA specifically exempts the judiciary, while TOMA has a list of definitions of those to whom it applies, which does not include the judiciary or any court. Aleshire generally represents plaintiffs who sue under the two laws.
Bresnen says the Supreme Court could choose to require the TAJC and task force to comply with the TPIA and TOMA. “I see no reason, and neither do the foundation or the section see any reason, they shouldn’t be following the same type of principles operating in the executive and legislative branches,” Bresnen says.
Bresnen’s letter comes in the aftermath of a dispute over the forms. The Supreme Court created the Uniform Forms Task Force in March 2011 and ordered it to work with the TAJC to create standardized forms to help low-income Texans represent themselves when they can’t afford lawyers. In early January, the task force submitted forms for simple, uncontested divorces with no children and no real property.
Starting in August 2011, family lawyers publicly raised a number of concerns: For example, people who use the divorce forms could mistakenly hurt their own interests, the task force plans to make forms for other areas of law, and the forms could hurt solo and small-firm lawyers’ businesses, among other things.
TAJC chairman Harry Reasoner says he thinks Bresnen’s request is meant “to disrupt the consideration of uniform forms” because Bresnen is lobbying for the Family Law Foundation, which opposes the divorce forms. The request is “meritless,” says Reasoner, a partner in Vinson & Elkins in Houston.
“The commission meetings have always been open, and we always have a number of people who are not on the commission attending,” he says. Visitors can participate in meetings, and they even get a free lunch, he adds.
Reasoner says he agrees with Bresnen that it’s a good idea to post notices of, information about and the agenda for meetings, and he will implement the suggestion that the TAJC follow a “strict rule” to post agendas online before meetings. But Reasoner doesn’t agree the TAJC should follow the open meetings law.
“To burden it with a lot of technical requirements is both unnecessary and, really, I think, is part of an attempt to further harass the commission,” he says.
But Bresnen sees it differently. “Every other level of government in Texas applies principles of open government without interfering in their ability to do their work, and those principles are designed to give the public confidence in its government and to basically bring things to the light of day,” says Bresnen. He adds, “I really don’t see how opening up the process to input from a variety of voices would impede Mr. Reasoner’s efforts. I think that’s wrong and speaks volumes on how we got to the place we’ve gotten.”
TAJC executive director Trish McAllister says the TAJC tries to be as transparent as possible, noting that anyone can attend its commissioners meetings. She thinks Bresnen wants the TAJC to go over and above TOMA’s requirements by allowing him access to its committees and subcommittees. Many times, the act exempts those types of groups. While the TAJC would welcome visitors to some committees or subcommittees, others need to deliberate in private, she says, but that doesn’t mean the TAJC is keeping secrets.
She notes committees and subcommittees must submit proposals to the TAJC commissioners, and the public can then give feedback. Also, if the TAJC sends formal recommendations to the Texas Supreme Court for approval, people can give feedback at several stages at that level.
Uniform Forms Task Force chairman Stewart Gagnon notes that the task force’s meetings aren’t really closed because he’ll share meeting times and allow people to attend upon request. He says Bresnen and other Family Law Foundation members have attended in the past.
Gagnon, a partner in Fulbright & Jaworski in Houston, says he thinks making the task force comply with the TOMA may hinder its ability to do substantive work. While drafting the pro se divorce forms, the 13 task force members would go back and forth on just one phrase. Crowding “another 200 people” into a small conference room all giving feedback would disrupt the drafting process, he says. He adds that people can attend the Texas Supreme Court Advisory Committee’s meeting in April, when the forms will be discussed.
Process and Product
The State Bar board of directors on Jan. 20 passed a resolution asking the high court to suspend the task force’s work, but the court instead forwarded the divorce forms to the Supreme Court Advisory Committee.
Bresnen says he would have “raised a flag” about the pro se divorce forms sooner if he could have seen agendas and attended meetings of the TAJC and task force.
“I’m reflecting over how we got here, and the absence of communication with the State Bar of Texas about all of this, and the Bar’s reaction to it. It made me stop and think: How might things have been different?” says Bresnen.
In his letter, Bresnen states he couldn’t find a January TAJC meeting notice or agenda online, but a TAJC employee sent him the information and the TAJC allowed him to attend and give comments. [See Bresnen's letter.]
Justice Nathan Hecht, liaison to the TAJC and the Uniform Forms Task Force, and Justice Debra Lehrmann, liaison to the Family Law Council, which is the leadership body for the family law section, decline comment because they say they want to wait for the court to discuss Bresnen’s letter at an upcoming judicial conference. The court hasn’t yet scheduled that discussion, Hecht says.
But, in general, Lehrmann says she thinks the court tries to be transparent by posting oral argument videos online, posting case briefs online, and sending out meeting agendas for some court-created groups such as the Supreme Court Advisory Committee.
“It’s always been my impression the court is very open about all that and tries to let people know what’s going on,” says Lehrmann.
Steve Bresnen’s letter to the Texas Supreme Court and video interviews with Bresnen and Trish McAllister are online at www.texaslawyer.com. Look for the links within the online version of this article.