We are glad to see attention from media (the Alexandria Gazette-Packet, in an article by @MichaelLeePope) and legislators to a subject we discussed in detail a couple months ago: the Supreme Court of Virginia’s execrable treatment of oral argument records.
The explanation, via the Office of the Executive Secretary, for why the Supreme Court doesn’t allow the public access to the recordings of oral arguments: the recordings supposedly capture confidential communications between justices during the arguments. Let’s take that claim at face value for a moment, without questioning how often that really happens and without lingering on why justices are making confidential comments in open court or why the justices’ microphones lack the on/off switch that is standard on microphones used everywhere else (in and out of state government).
The Court’s confidential comments claim provides no legal justification for withholding all access to oral argument records, which arguably are subject to both the Virginia Public Records Act and the Virginia Freedom of Information Act already (as discussed in our prior post). Redacted versions could, and should, be provided. Nor does the confidential comments claim provide any explanation for why the Court does not have a court reporter, who could easily be bound by an oath of confidentiality, create a non-confidential transcript.
Note that lawyers in Virginia state court know that it’s their responsibility to get court reporters and have transcripts made of circuit court proceedings. This is routine and an elementary part of good practice. (See, e.g., Justice Agee’s comments via Virginia appellate practitioner Steve Emmert here; Virginia appellate practitioner Jay O’Keefe’s advice here and here.) It defies belief to think that interested parties and counsel wouldn’t bear the costs of transcribing the Supreme Court’s oral argument sessions, but the Court kills even that by not allowing private arrangements for oral arguments to be transcribed.
In short, the judicial branch’s claims fail to explain or justify the Supreme Court’s current oral arguments records practices, which fall far short of both what should be done and what other appellate courts do (as discussed in our prior post). If the Court is unwilling to put the judicial transparency that it touted in opinions as recently as earlier this year into action, it is time for the General Assembly to require openness of the judicial branch, including the Supreme Court.