The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Some backstory, from WRIC (ABC-8) (Dean Mirshahi):
Judge Adrianne Bennett, the former chairwoman of Virginia's Parole Board, was suspended from the bench last year amid an intensifying scandal over the board's handling of certain cases.
Bennett left the board to become a Virginia Beach Juvenile and Domestic Relations District Court judge, but she was indefinitely suspended by a panel tasked with investigating claims of judicial misconduct nearly a year to the day after she was sworn in….
She was suspended … on April 13, 2021, … but is listed as a Virginia Beach Juvenile and Domestic Relations District Court presiding judge on the court's website.
From Thursday's Virginia Supreme Court decision in In re Bennett (a per curiam endorsed by Chief Justice Bernard Goodwyn, Justices Cleo Powell and Stephen McCullough, and Senior Justice LeRoy Millette):
On May 20, 2021, Judge Adrianne L. Bennett petitioned this Court under its original jurisdiction for writs of mandamus and prohibition in connection with a matter that was then pending before the Judicial Inquiry and Review Commission (JIRC). We denied the petition one day later, and ordered the record of the case sealed, including the order disposing of Judge Bennett's petition and sealing the proceedings. On July 8, 2021, Lee BHM Corporation, publisher of the Richmond-Times Dispatch ("the Publisher"), filed a "Petition for Leave to Intervene and Motion to Vacate Order Sealing a Sealing Order." …
[T]he same qualified right of access to proceedings and records that the [U.S. Supreme] 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. 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.
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 begins with the command that "[a]ll papers filed with and proceedings before the Commission … shall be confidential and shall not be divulged." The statute contains some limited exceptions to this mandate of confidentiality, but none apply here…. The General Assembly, as the policymaking branch of our government, has determined that such records should be kept confidential.
Furthermore, judicial 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:
- Encouraging the filing of complaints and protecting the complainant from possible retaliation;
- Protecting judges from unwarranted complaints;
- Maintaining confidence in the judiciary by avoiding premature announcement of groundless complaints; and
- 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. As one court noted, "[a]gainst this background [of protecting the confidentiality of judicial disciplinary hearings], the 'presumption of openness' gleaned from the history of criminal trials surveyed in Richmond Newspapers lacks force."
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.
Justice Arthur Kelsey, joined by Justice Teresa Chaffin, dissented in part:
Judge Bennett filed a mandamus action in the Supreme Court of Virginia asking us to order the Judicial Inquiry and Review Commission ("JIRC") to reinstate her to the bench. From the start, Judge Bennett made clear that she did not want anyone but us to see the reason why JIRC had suspended her….
The governing statute, Code § 17.1-913, balances the need to protect JIRC confidentiality while simultaneously preserving the public's constitutional right to open courts. The statute should be understood in the context of its historical background. In 1978, the United States Supreme Court observed that the statute "implement[ed] the constitutional mandate of confidentiality" found in Article VI, Section 10 of the Constitution of Virginia. At that time, Article VI, Section 10 stated that "[p]roceedings before the Commission shall be confidential." This "shall" command barred the legislature from ever eliminating or even tailoring the secrecy of "[p]roceedings before the Commission."
The constitutional mandate of JIRC secrecy proved to be too much for the citizens of Virginia. In 1998, the Virginia electorate repealed the mandate and replaced it with the present language, which states that "[p]roceedings and documents before the Commission may be confidential as provided by the General Assembly in general law." The shift from "shall" to "may" was purposeful. The 1998 amendment downgraded the confidentiality of JIRC proceedings from a constitutional requirement to a mere legislative option. This should give us considerable pause. A constitutional amendment is a powerful statement of the polity, and the statement being made here was that confidentiality—even in disciplinary proceedings before JIRC—should not be constitutionally sacrosanct.
Against this backdrop, Judge Bennett argues that we should extend JIRC secrecy to a mandamus proceeding before the Supreme Court of Virginia. Doing so, however, directly contradicts Code § 17.1-913(A). With the clearest of language, this statute declares that "the record of any [JIRC] proceeding filed with the Supreme Court shall lose its confidential character." [Further statutory discussion omitted. -EV] …
Judge Bennett's assertion that she has a statutory right to demand that we seal the JIRC documents, even if it were correct, does not end the analysis. We still have to decide whether doing so in this case would violate the open-courts doctrine protected by the First Amendment of the United States Constitution and Article I, Section 12 of the Constitution of Virginia.
Judge Bennett has never proffered a constitutionally "compelling governmental interest," that would justify denying public access to the two JIRC documents attached to her mandamus petition. And even if she had done so, Judge Bennett has not suggested how keeping these documents indefinitely sealed is "narrowly tailored," to serve her unarticulated interest. In her written argument in support of sealing the JIRC documents and in oral argument before the full Court, Judge Bennett advanced only the statutory argument adopted today by the majority. She did not address the possibility that if her interpretation were correct, the public's constitutional right of access to the courts would supersede the statute.
For its part, the majority acknowledges the constitutional issue but then sidelines it with the observation that "judicial disciplinary hearings" are not like "ordinary civil and criminal trials, which benefit from a long tradition of openness." This sets up the assertion that the constitutional "presumption of openness" applies in the latter scenario but "lacks force" in the former.
This dichotomy is flawed. When the Court considered Judge Bennett's petition and dismissed it, the Court was not conducting a judicial disciplinary hearing. The Court was reviewing a mandamus petition seeking a common-law writ within our original jurisdiction—a core constitutional proceeding unique to the judiciary. Based upon its misapplied dichotomy, the majority categorically deems all JIRC records filed in any civil proceeding before the Virginia Supreme Court (including a mandamus proceeding) to be outside the reach of the public's right of access guaranteed by the First Amendment of the United States Constitution and Article I, Section 12 of the Constitution of Virginia. No case cited stands for this closed-courts thesis, and I have found no precedent supporting it….
ly back to first principles. The Constitution of Virginia vests the Supreme Court of Virginia with the "judicial power of the Commonwealth." Va. Const. art. VI, § 1. Implicit in this ancient power is the warning that "[t]here is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it." The constitutional duty to heed this warning applies whenever "experience and logic" supports the public's interest in knowing what their courts are doing and have done. Like so many great truths, this experience-and-logic rule is simple but ambiguous. Even so, I cannot understand how it does not apply here. Neither experience nor logic justified the initial sealing of this "proceeding." And nothing in today's order justifies our continued sealing of the JIRC documents….