Monthly Archives: January 2014

Be “greedy”

If you’re interested in a legal topic, it’s worth making a habit of reading legal blogs that discuss the subject.  Any Virginia lawyer with an interest in appeals would tell you that Steve Emmert’s Virginia Appeals blog is among the best for following Virginia appellate law.  And, generally speaking, disagreeing with eminent advocates like Mr. Emmert is not a good sign.

But in an otherwise great January 13 post that praised the Supreme Court of Virginia starting to make oral argument audio recordings available online, he said something that we couldn’t disagree with more:

“…. without any advance announcement, the Supreme Court of Virginia has begun to make publicly available the audio of oral arguments during sessions of the full court. (There will be no access to writ-panel arguments, but you shouldn’t be greedy.) ….” [emphasis added]

Now, that emphasized bit above may have been merely an expression.  We don’t believe that Mr. Emmert would oppose or disagree with even greater access.  And it is entirely appropriate to be thankful for the court’s decision to start providing audio.  But that statement is wrong on two levels.

First, it is not greedy to want more openness in government generally or in the law in particular.  Openness and transparency makes government and law better.  It provides legitimacy.  It fosters knowledge and understanding.  It helps the public.  Openness is a benevolent principle.

Second, when it comes to public access, you should be greedy.  To take just one example, with respect to public access to appellate courts, you should want Virginia to rank at the top of the 50 states, rather than toward the bottom. And it wouldn’t take much to get there.  Virginia would been among the top ranking states if it had (i) live audio (which is possible and inexpensive given that audio is already being produced); (ii) online access to briefs (which already exist in electronic form); and (iii) opinions that can be cited over time (which could be achieved through a public domain citation system and/or freely-accessible electronic versions of the official Virginia Reports volumes).

So, Virginia, when it comes to greed for more public access to the law and government, remember this: we all have a stake in this company, and greed is good.


Public access to the states’ highest courts: a report card

It’s self-evident that the Supreme Court of Virginia is an important part of state government.  But because the court may seem remote from most people and day-to-day life, it’s worth briefly considering the scope of its ability to impact the lives of Virginians.

In the last year, the Supreme Court of Virginia has ruled in cases concerning the duty that state educational institutions have with respect to students, the tolls that residents and travelers in Virginia’s second most populous region will soon be paying, the legality of Texas Hold ‘Em poker, the relationship between congregations and denominations, and many other matters of public interest.  It does not take going far back in time to find Virginia’s appellate courts deciding matters as intimate as whether unmarried people may legally have sex.  (The answer: yes, as long as they’re over 18.  16 & 17 year olds apparently should get married first.  But we digress.)

In short, Virginia citizens have a huge interest in what Virginia’s appellate courts do.  The public also has a well-established constitutional right of access to court records and proceedings.

In practice, however, Virginia’s appellate courts have been choosing to make public access — especially to the facts, arguments, and law (in briefs and oral arguments) that influence and lead to opinions — much more difficult than it should be.  Specifically:

  • Despite the fact that it has scanned/digitized versions of more than 100 years of briefs, and that court rules require parties to file an electronic copy of new briefs (see Rule 5:26(e)), the Supreme Court does not make briefs available on its website.  You must request a copy.  Nor will the court e-mail that copy to you.  They will print out a paper copy, for which you must pay $0.25 per page.

That difficulty and lack of access to important appellate records and proceedings is unfortunate and galling.

We suspected that the situation in Virginia also was unusual, but, to our knowledge, there has been no source of comprehensive, comparative information for the 50 states.  We decided we could fix that.

So we produced an assessment of public access to the top court in each state (779 KB PDF)  In addition to a narrative summary, recommendations for improvement, and a Q&A-format discussion of public access, the report card provides detailed, state-by-state information, supported with relevant hyperlinks, in an easy-to-understand format.

We expect to highlight various parts of the report card in future posts.  We hope you’ll spend a few minutes perusing it, but we won’t make you read the report to find out how Virginia scored:  with its recent start of a publicly accessible archive of oral argument audio recordings, Virginia received a “C-“.  (That was up from an original score, before last Friday’s announcement, of “D”.)  Virginians now need not console ourselves merely with saying “at least we’re not Alabama.”  But there’s still considerable room for improvement.


Supreme Court begins posting oral argument audio

If there’s something that courts like less than the combination of negative media attention and the prospect of related regulation by the legislature, we’re not sure what it is.

That brings us to the Supreme Court of Virginia’s announcement after close of business Friday that it has begun posting audio recordings of oral arguments made before the full court.  (That is, the recordings are of oral arguments “on the merits” — the arguments by both sides after appeals have been accepted and briefed — not of the “writ panel” proceedings where only one side argues briefly before a panel of three justices to convince the court to take the case.)

The posted recordings begin with the oral argument sessions of this past week (the January Session 2014).  The press release states that “Audio recordings will be posted at the end of each week that the Court is in session, and will be archived and maintained on Virginia’s Judicial System Website.”

The posting of oral argument recordings is long-overdue good news for Virginia.  We appreciate that the Supreme Court has taken this step.  (We also congratulate the Court on puzzling out a solution to the confidential comments conundrum that the Court revealed over the summer.)

To be sure, more can and should be done.  The Court of Appeals does not yet post oral argument recordings, and both courts still do not provide online public access to briefs.  But at least things are moving in the right direction.

Programming note:  The Supreme Court’s announcement necessitates some last minute revisions to our 50 state survey and report card regarding public access to the states’ highest courts, which will be posted late in the day tomorrow, as planned.  Stay tuned.


FOIA case follow-up and what’s coming up

Federal FOIA case follow-up

Last month, we wrote about Electronic Frontier Foundation v. Dept. of Justice, a federal FOIA case before the U.S. Court of Appeals for the D.C. Circuit, which concerns whether legal memos from the Office of Legal Counsel (OLC) are exempt from disclosure.

Unfortunately but perhaps not surprisingly, the D.C. Circuit ruled yesterday that OLC memos were exempt from disclosure under the “deliberative process privilege” of 5 U.S.C. § 552(b)(5) (Exemption 5), which covers “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”  Steve Vladeck, writing at Just Security, has a good discussion of the problems that result from the court’s reasoning.

Although agencies need legal advice, and do sometimes need that advice to be private, formal legal opinions that agencies rely upon and/or follow seem different.  The public has some need — and right — to know how the Executive Branch interprets and applies the law — the “working law” (in the parlance of this case and prior cases).  And it’s not clear how — or whether — the D.C. Circuit would prevent agency game-playing surrounding whether an agency has formally “adopted” OLC memos.

As Vladeck’s Just Security post hints, the best solution would be for one of the elected branches to clarify and resolve when OLC memos/opinions are binding on, or otherwise become the official position of, an agency and therefore required to be public.  Of course, the list of problems that Congress is unable or unwilling to tackle could drive one to despair, and it understates the situation considerably to note that recent presidents (of both parties) have not made openness a priority.

What’s coming up

With the 2014 session of the Virginia General Assembly right around the corner, there are many open government bills and subjects worth discussing, and we intend to do that.  (In the meantime, we recommend starting with this bill chart from our friends at the Virginia Coalition for Open Government).

First, however, we’ll soon be releasing a 50-state report card regarding public access to state highest courts.  (If that sounds awkward, blame NY and MD for being unable to say state supreme courts.)  Sadly, Virginia ranks near the bottom in public access — a fact Supreme Court staff seem to have been concealing through true but misleading public statements.  Real public access is on-demand, online public access, and it’s time that Virginia’s policymakers and citizens had solid information about what the Supreme Court of Virginia’s secrecy is denying to the Commonwealth.