Virginia Lawyers Weekly VA Lawyers Weekly
Where a newspaper publisher petitioned the Virginia Supreme Court to vacate its order that sealed the record of a judge’s petition for reinstatement and request for a writ of mandamus, most of the materials will be unsealed, but attachments that are records of a Judicial Inquiry and Review Commission proceeding will remain sealed.
Background
Judge Adrianne L. Bennett petitioned the Virginia Supreme Court for a writ of mandamus to compel the commission to reinstate her to the bench. The court denied the petition and sealed the record, including the judge’s mandamus petition.
Several months later, the publisher of the Richmond-Times Dispatch filed a motion to intervene in the matter for the purpose of asking the court to vacate its sealing order.
Procedural posture
As an initial matter, the mandamus case has concluded. “[A]llowing the Publisher to intervene in a case that has ended would be improper.” But when a court seals a record it has the “inherent authority … to unseal a record previously ordered sealed. …
“[W]e will treat the Publisher’s petition as a motion to unseal court records, and we will proceed to address the relief sought by the Publisher.”
‘Unprecedented’
“Although the United States Supreme Court has not addressed the point, we conclude that the same qualified right of access to proceedings and records that the Court has recognized in criminal cases should also be recognized in ‘civil trials and to their related proceedings and records.’ ….
“The present case was unprecedented because it concerned a request for judicial relief against a proceeding that is statutorily protected from disclosure to the public. Thus, the request to seal the proceedings in our Court was also unprecedented.”
Petition unsealed
“Our review of the records prompts us to revisit our order sealing the records of the mandamus proceeding and to exercise our authority to unseal this order as requested by the Publisher.
“Orders from this Court have long been accessible to the public. In addition, in the interest of openness and transparency, we further unseal the remainder of the case sua sponte, with the exception of attachments to the petition for a writ of mandamus.
“Mandamus proceedings have a long tradition of openness. We see no reason to seal the petition and other pleadings.”
Commission’s proceedings
“We reach a different conclusion with respect to the attachments filed with the mandamus petition. Those attachments are records of a then pending proceeding before the Judicial Inquiry and Review Commission. By law, records of proceedings before the Commission are kept confidential. …
“The statute contains some limited exceptions to this mandate of confidentiality, but none apply here. For example, the statute provides that ‘the record of any proceeding filed with the Supreme Court shall lose its confidential character.’ …
“Any ‘proceeding,’ in context, refers to disciplinary proceedings against a judge, not a mandamus proceeding like this one. Code § 17.1-913(A) specifies that ‘[a]ll records of proceedings before the Commission which are not filed with the Supreme Court in connection with a formal complaint filed with that tribunal, shall be kept in the confidential files of the Commission.’ … (emphasis added).
“The mandamus filed by Judge Bennett is not ‘a formal complaint filed with’ this Court. Therefore, the exception does not apply, and the mandate of confidentiality does apply. The General Assembly, as the policymaking branch of our government, has determined that such records should be kept confidential.”
Widespread confidentiality
“[J]udicial disciplinary proceedings differ from ordinary civil or criminal proceedings. Nearly every state, including Virginia, protects the confidentiality of disciplinary proceedings against judges, for a variety of sound reasons:
“‘1. Encouraging the filing of complaints and protecting the complainant from possible retaliation;
“‘2. Protecting judges from unwarranted complaints;
“‘3. Maintaining confidence in the judiciary by avoiding premature announcement of groundless complaints; and
“‘4. Facilitating the work of a commission by giving it flexibility to accomplish its mission through voluntary retirement or resignation of offending judges.’
“The confidentiality accorded to judicial disciplinary hearings stands in contrast to ordinary civil and criminal trials, which benefit from a long tradition of openness.”
No bypass
“It is true that we are dealing with attachments to a mandamus proceeding, not the actual proceeding before the Judicial Inquiry and Review Commission. That does not make a difference.
“If a litigant could bypass the confidentiality of judicial disciplinary proceedings by simply attaching a record of those proceedings to a pleading, the confidentiality protections would be largely illusory.
“Accordingly, although we unseal the remainder of the filings in the case, we conclude that the records of the Judicial Inquiry and Review Commission attached to the mandamus petition should remain under seal.”
In Re: Honorable Adrianne L. Bennett, Petitioner, Record No. 210489 (Order) (Kelsey, dissenting, joined by Chafin) April 21, 2022. Upon a Petition for Leave to Intervene and Motion to Vacate Order Sealing a Sealing Order. VLW 022-6-024, 13 pp.
