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.

 

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