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.
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.
Appellate courts are generally free of the hurly-burly that marks a trial court’s daily life. You generally won’t find, for example, discovery or evidentiary disputes in appellate courts because the record is fixed in the trial court. Occasionally, however, a motion (a request for court action) is made in appellate court, which the court then typically handles by order or opinion.
This week, Richard Posner, a widely-known, scholarly-yet-publicly-visible judge on the U.S. Court of Appeals for the Seventh Circuit, which is based in Chicago, wrote an interesting opinion disposing of motions in two cases. (Federal appellate courts generally act in panels of three, but individual judges may dispose of motions, and Judge Posner was the Seventh Circuit’s designated motions judge for the week.) [H/T this National Law Journal article, via VCOG’s indispensable, daily Transparency News.]
The issue was whether the court would keep confidential the terms of the settlement agreement that resolved each case.
From an openness perspective, Judge Posner’s opinion is notable both for its content and for the contrast it reveals in how different appellate courts handle public access to motions.
As we recently noted in praising the Fairfax Electoral Board’s transparency, the race to be the next Virginia Attorney General is not over. The current venue is Richmond Circuit Court, where a three-judge panel is presiding over a statewide recount that will take place starting today in Fairfax and tomorrow across the rest of the Commonwealth.
Although there are many cases that have a public impact or are otherwise newsworthy, it’s hard to imagine a circuit court case that the public has more of an interest in observing closely than the recount case (Obenshain v. Herring, Richmond Cir. Ct. case no. CL13-5272). But an erroneous legal interpretation means that if you want to follow that fast-moving case and are not a Virginia attorney who has paid the Richmond Circuit Court for remote access, you’re essentially out of luck.
Earlier this year, Fairfax County Circuit Court Clerk John Frey began making court opinions freely available on his office’s website, for which the Virginia Coalition for Open Government awarded Frey an open government award at its annual conference. This week, the Fairfax County Electoral Board again has made Fairfax a model for transparency and open government.
If you’re at all interested in Virginia state government lately, you know that the race to be the next Virginia Attorney General is not yet over. Democrat Mark Herring was certified as the winner by a mere 165 votes out of the 2.2 million cast, but lawyers for Republican Mark Obenshain are vigorously prosecuting a recount in Richmond Circuit Court. The actual recount is set to occur across the state next week.
Fairfax, owing to its large portion of Virginia’s population and its critical support for Herring, has been a central focus on election night and since. Notwithstanding the fact that two out of the three Fairfax Electoral Board members are Republican, including Twitter sensation Brian W. Schoeneman, unfounded conspiracy theories swirled online as Fairfax officials conducted the post-election canvass, identifying votes that helped Herring over the top. (Vote corrections in Richmond, another locale where two out of three Board members are Republicans, actually gave Herring the lead, but Fairfax closed the gap significantly, was indispensable to Herring overall, and has been the focus of Republican election lawyers.)
Schoeneman’s engagement after the election on Twitter, sparked by astute observers’ tweets, was enough to praise the electoral board for openness. But the Fairfax Electoral Board has now shown that it’s not content to achieve transparency 140 characters at a time.
This past Wednesday, December 11, the Fairfax Electoral Board unanimously adopted a 33 page voluntary report detailing the post-election decisions and process in Fairfax, as well as influential pre-election events. That report is now available to the public. (H/T Rick Hasen’s excellent Election Law Blog.) The Board explains that it created the report “to explain to interested stakeholders and the public the sequence of events, the decisions made by the Board and the rationale for those decisions.” The Board hopes “that by being transparent and open about these issues, the public will be reassured about the administration of the election.”
When controversy swirls, too often government officials keep their cards close to the vest. We commend the Fairfax Electoral Board for embracing transparency and openness instead. Whatever the ultimate rulings of the recount court and results of the election are, the public wins when it gets a full explanation of the decision-making of government officials.
Two Virginia openness news items caught our eye today.
In the not-with-a-bang-but-with-a-whimper category, the Richmond Times-Dispatch reports (toward the bottom of the article) that Hanover County’s Board of Supervisors did not discuss their proposal to weaken the Freedom of Information Act in their legislative agenda open meeting yesterday morning. As you may recall, Hanover’s Board proposed allowing more than two members to meet in non-public meetings, and fortunately, the FOIA Council declined to consider it, seeing it as the unjustified and unwise proposal that it is. Here’s hoping that next year, once it’s no longer necessary to save face, the Hanover Board will let it go. (And perhaps learn how to use e-mail and public meetings in the meantime.)
On the other hand, sometimes a Virginia locality really gets open government right. This week, that was Newport News, which received commendation from the Daily Press for holding a public meeting to allow citizen interaction with the finalists for chief of police (H/T @opengovva’s daily Transparency News). In our book, this type of interaction should be the rule, not the exception, for high-profile but unelected public officials.
It’s worth noting that FOIA’s personnel records exemption, found in Va. Code § 2.2-3705.1(1), allows the custodians of personnel records to release them except where release is prohibited by some other law. Likewise, FOIA’s provision allowing public bodies to interview candidates and discuss personnel matters privately, found in Va. Code § 2.2-3711(A)(1), is an authorization, not a requirement. In short, with personnel matters as with most FOIA exemptions, public bodies generally have discretion to choose to govern in sunlight. Citizens should demand that public bodies do so for matters that have a significant public impact and should commend those public bodies, like Newport News, that get it right.
With the 2013 state elections the focus of attention related to Virginia government this week, an important and beneficial change regarding Virginia public records has gone largely unnoticed. This week, the Library of Virginia began allowing ready public access to agency-specific records retention schedules. We highlighted the problem of the inaccessible specific schedules months ago, and we commend the Library for solving it.
Both the specific and general state agency records retention schedules now appear on the Library’s website, along with other useful information about public records.
Our prior post on the Virginia Public Records Act goes into more detail, but here’s a brief recap of why this change matters and a preview of what challenges remain.
We’re happy to celebrate good news for openness. In that spirit, we applaud the Fairfax County Circuit Court.
In a move that seems to have been unannounced and unpublicized, Fairfax has begun to post on its website, without cost or restriction, copies of letter opinions issued by its judges. See http://www.fairfaxcounty.gov/courts/circuit/circuit_court_opinions.htm. Kudos to Clerk John Frey, Chief Judge Dennis Smith, and all others involved in making this happen.
This practice (posting opinions online) is an easy, obvious way to promote judicial transparency and public access to the law. It’s common in federal trial courts but vanishingly rare in Virginia trial courts. To our knowledge, only the Loudoun County and City of Norfolk circuit courts did this prior to Fairfax. (See below for more on Loudoun & Norfolk, and please let us know if you know of any others.) Fairfax is a pretty high profile, high opinion volume court, and we hope that Fairfax choosing to make its opinions freely, publicly available online will start a trend.
Prior to this, Fairfax provided copies of its opinions to a small and privileged group of recipients that used them for profit and imposed restrictions on access (such as Lexis, Westlaw, and Virginia Lawyer’s Weekly). At some point in the past, the Fairfax Bar Association posted opinions, but they transitioned over time to making access to their copies a “members only” perk and to posting the opinions only temporarily.
It is really bad policy for public judicial records to be provided preferentially to certain private persons/entities, who then impose restrictions on use such that these records largely become captive to those private sources over time. Circuit court opinions are an important public judicial resource that easily can be made available to all and that should be made available to all. Fairfax now gets it, and we think that’s wonderful.
A bit more discussion and tech details on Fairfax, Loudoun, and Norfolk after the jump.