Virginia Lawyers Weekly VA Lawyers Weekly
The Virginia Supreme Court has denied a newspaper’s request to unseal portions of a judge’s mandamus petition that included documents from her then pending matter before the Judicial Inquiry and Review Committee, or JIRC.
“The confidentiality accorded to judicial disciplinary hearings stands in contrast to ordinary civil and criminal trials, which benefit from a long tradition of openness,” the court said.
However, the court did reverse its prior order sealing the mandamus proceedings.
Two justices dissented, arguing that nothing in state law requires JIRC documents be sealed if they are filed with the Virginia Supreme Court.
The April 21 per curiam opinion is In Re: Honorable Adrianne L. Bennett (VLW 022-6-024).
Background
In May 2021, Judge Adrianne L. Bennett filed a petition for writs of mandamus and prohibition with the Virginia Supreme Court. The petition was connected to and contained records from her then-pending JIRC matter.
Bennett is a former chair of the state Parole Board who left the board to become a District Court judge. According to her mandamus petition, she was suspended in April 2021 pending an investigation of her conduct as Board chairperson during the time between her election and her taking the judicial oath of office. No allegations appear to have been made concerning the judge’s conduct while on the bench.
Bennett argued that the JIRC exceeded its authority by ordering her suspension with only six of the seven members that are required constitutionally and by statute. She asked the court to vacate her suspension and prohibit the JIRC from operating without seven members.
The court denied the petition but ordered the record of the case be sealed, along with the order which dismissed the case. The dismissal order contained a single sentence which “granted Bennett’s motion to seal the entire Supreme Court of Virginia ‘proceedings,’ not just the JIRC record, or any portion thereof, that she had filed as attachments to her mandamus petition.”
In July 2021, Lee BHM Corporation, publisher of the Richmond Times-Dispatch, filed a petition to intervene and vacate the sealing order, which the court has treated as a motion to unseal court records because the mandamus case was concluded.
‘Mandate of confidentiality’
The court noted that there is a statutory requirement that JIRC proceedings and records be kept confidential. Code § 17.1-913(A) provides that “[a]ll papers filed with and proceedings before the Commission … shall be confidential and shall not be divulged.”
While there are some exceptions, including one for “formal complaints” filed with the Virginia Supreme Court, the court said that “refers to disciplinary proceedings against a judge, not a mandamus proceeding like this one.”
Because “[t]he mandamus filed by Judge Bennett was not ‘a formal complaint filed with’ this Court … the exception does not apply, and the mandate of confidentiality does apply.”
While the court acknowledged it was not dealing with an actual JIRC proceeding but with attachments to a mandamus proceeding, it said that did not make a difference.
The court went on to state that “judicial disciplinary proceedings differ from ordinary civil and criminal proceedings” and note that 47 states and the District of Columbia all provide for the confidentiality of such proceedings. It listed a number of policy reasons for such confidentiality, including encouraging the filing of complaints, protecting judges from unjustified complaints, avoiding the disclosure of unwarranted complaints and giving disciplinary commissions the flexibility to reach appropriate resolutions.
Given this, the court denied the petitioner’s request to unseal Bennett’s attachments to her mandamus petition.
Justices D. Arthur Kelsey and Teresa M. Chafin dissented on the issue of keeping the JIRC attachments sealed without providing “particularized findings for the sealing,” as the petitioner requested.
They also argued that notwithstanding the majority’s view, this was in fact a “proceeding filed with the Supreme Court” and therefore the “mandate of confidentiality” had been lost.
The right of access
In considering the issue of whether the mandamus proceeding should be unsealed, the court focused on U.S. Supreme Court decisions which protect a qualified right of access to trials, voir dire and preliminary hearings in criminal proceedings.
These decisions culminated in the adoption of a two-pronged test to assess the right of access to a specific judicial proceeding, the court said. The “experience” prong considers “whether the place and process have historically been open to the press and general public.” The “logic” prong assesses “whether public access plays a significant positive role in the functioning of the particular process in question.”
If both prongs are met, the government’s justification for closure must withstand strict scrutiny.
Relying on this guidance, the court concluded that the records of the mandamus proceeding should be unsealed, noting that “[m]andamus proceedings have a long tradition of openness.”
“In addition, in the interest of openness and transparency, we further unseal the remainder of the case sua sponte, with the exception of the attachments to the petition for a writ of mandamus,” the court held.
JIRC secrecy
Attorney Lee Floyd of Brent Biniazan in Richmond, who represented Bennett in the mandamus proceeding, said there should be increased transparency about the JIRC’s processes.
“Nobody knows what the JIRC does,” she said.
While the JIRC may subpoena witnesses during its investigation, an accused judge cannot do so, either then or if the JIRC files a formal complaint. According to Floyd, judges face a secret vote with little clarity about what investigation, if any, has occurred.
Floyd said she is aware of only seven or eight JIRC cases taken to the Virginia Supreme Court, and the records weren’t unsealed in any of those instances.
