What it means: Given that one of the judge’s explicit requirements is that the membership of the panel be revamped, his ruling Thursday may well postpone the panel’s report until after the November election.
The background: Much of Bates’ 45-page ruling focuses on a requirement in the 1972 transparency law that federal advisory committees be “fairly balanced” in their make-up. The George W. Bush appointee said a commission consisting entirely of law enforcement could not meet that standard.
“The Court is hard pressed to think of a starker example of non-compliance with FACA’s fair balance requirement than a commission charged with examining broad issues of policing in today’s America that is composed entirely of past and present law enforcement officials,” wrote Bates, ruling on a lawsuit filed in April by the NAACP Legal Defense & Education Fund (LDF).
“The Commission includes no members from civil rights groups like LDF. Nor does it include any criminal defense attorney, academic, civic leader, or representative of a community organization or social service organization. Instead, all eighteen Commissioners are current or former law enforcement,” Bates added. “This is precisely the type of imbalance that FACA sought to prevent.”
Bates noted that one appeals court, the San Francisco-based 9th Circuit, has held that the “fair balance” requirement in FACA to too vague for courts to enforce. But he said the weight of legal precedent comes down in favor of the provision being susceptible to enforcement by judges, especially in egregious cases.
Bates rejected the Justice Department’s arguments that the panel was exempt from the transparency statute under an exemption created in 1995 for committees dealing solely with issues of joint responsibility between the federal government and state, local or tribal governments. He said that defining that exemption as broadly as the Justice Department suggested would have “no limiting principle” and would essentially gut the law.
Many of the panel’s meetings have been held publicly by teleconference since the coronavirus pandemic began to spread earlier this year. The Justice Department’s website lists 14 hearing sessions and provides a transcript and audio recording for most of them.
However, the judge’s ruling says the department conceded that the meetings would be considered closed if the transparency statute applied. The sessions were also not announced in advance in the Federal Register, as the law requires, Bates said.