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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 Administrator, 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 essential functions.

6. Constitutional Law. 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 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 constitutionally committed to it.

8. Legislature: Constitutional Law: Statutes: Public Policy. The 

Legislature exercises a power constitutionally committed to it by enacting statutes to declare what is the law and public policy.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/16/2017 09:12 AM CDT
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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 powers 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 delegated 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 constitutional authority.

12. Constitutional Law: Courts: Legislature: Statutes. 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.

13. Constitutional Law: Records. The extent that legislatively mandated 

disclosure of another branch’s records impairs that branch’s constitutionally 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 confidentiality 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 coordinate 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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Banister Amicus Brief Clinic, UCLA School of Law, for 

amicus curiae Media of Nebraska, Inc.

Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, 

JJ., and Riedmann, Judge.

Per Curiam.

I. NATURE OF CASE

Corey R. Steel, the State Court Administrator, appeals 

from a writ of mandamus ordering the disclosure, pursuant 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. Request and Response

Attached to the complaint was Veskrna’s email to Steel 

requesting:

all records in any form, including PowerPoint presentations, handouts, notes, video and audio recordings, correspondence, memoranda, email and other communications, regarding judicial education programs since July 1, 

2012 on child custody and parenting time. This request 

includes records, including email and other communications, 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, supervisory and inherent authority over the state’s judicial system. 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 produce records . . . under the [Act] is subject to their supervisory 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 benefit 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 independently 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 Answer 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 education and that Steel had no corresponding clear duty to produce 

such records.

4. Summary Judgment

Veskrna and Steel filed cross-motions for summary judgment. 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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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 public, public records shall include all records and documents, 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 traditionally 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 supported disclosure.

(b) Steel’s Arguments

Steel argued that the Committee’s informal policy and practice 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 criteria 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, sanctions for noncompliance, and exemptions.”

Section 1-512(A) states that the advisory committee shall 

have authority to “[d]evelop and review standards and administrative rules addressing such issues as the criteria for mandatory 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 governing the confidentiality of JBE records.
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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 properly 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 counties, 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 executive 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 rulemaking 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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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 judgment 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 foundation, hearsay, and relevance, and because they contained legal 

conclusions and arguments. With the exception of two sentences 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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Access to the educational materials is likewise “tightly controlled.” McMahon-Boies opined that “[j]udges exhibit a different demeanor when individuals other than judges, staff or 

educators participate in the educational sessions,” explaining that “[j]udges are less likely to ask questions or provide 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 judicial 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 policy 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 denying 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 public 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 deliberative process privilege is a recognized privilege applicable 

to this case.

In considering the JBE records at issue, the court concluded 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 confidentiality 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 documents 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 documents 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 communication 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 presenter 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 presenter 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 complaint, (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) awarding 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 examination 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 requesting 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 enumerated 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 determined 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 evidence 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 statute 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 Records as Defined

by § 84-712.01

We first analyze Steel’s argument that as a matter of statutory 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 information 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 policies . . .” 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 confidentiality 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 implementing 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 confidentiality 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 regulating 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 questions 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 existence 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 recognized 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 constitutionally 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 exercise of their constitutionally delegated powers. This overlap 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 powers 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.21

[11] An analysis of the overlapping exercise of constitutionally delegated 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 constitutional 

17 See In re Petition of Nebraska Community Corr. Council, supra note 12.

18 Stewart 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 function 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 admissibility 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 prescribing 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 judicial 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 essential to the integrity of our judicial system. We have already 

explained that judicial education is an important judicial function 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 preserve 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 distinction 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 protections of the public interest embodied in the public records 

statutes would be a nullity. This would upset the proper balance 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 legislative and judicial branches are not at cross-purposes in supporting 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 importance 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 documents falling under the judicial deliberations privilege, we 

find the privilege inapplicable to the documents contained 

in exhibit 4. The judicial deliberations privilege is a privilege 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 protected 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 detriment of the decisionmaking process.”38 Without such candor in 

our deliberative process, we cannot perform our essential function 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 deliberations 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 processes 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 processes in particular cases.41

From our examination of the records in this case, we conclude they do not fall under the judicial deliberations privilege 

just described. Fundamentally, the records do not relate to particular 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 conflicts between the judiciary and the Legislature as relate to the 

public records statutes. Neither do we accept any clear demarcation 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 content 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 coordinate 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 contained 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 presentations, alone, does not reveal the attending judges’ mental processes 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 McMahonBoies’ 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.

Affirmed.

Heavican, C.J., not participating.