Daily Press, Inc. v. Commonwealth

• Decision Date: 28 February 2013
• Docket Number: Record No. 120858.
• Citation: 285 Va. 447,739 S.E.2d 636
• Court: Virginia Supreme Court
• Parties: The DAILY PRESS, INC., et al. v. COMMONWEALTH of Virginia, et al.

285 Va. 447

739 S.E.2d 636

The DAILY PRESS, INC., et al.

v.COMMONWEALTH of Virginia, et al.

Record No. 120858.

Supreme Court of Virginia.

Feb. 28, 2013.

Hunter W. Sims, Jr. (R. Johan Conrod, Jr.; Karla J. Soloria; Kaufman & Canoles, Norfolk, on briefs), for appellants.

Robert H. Anderson, III, Senior Assistant Attorney General (Kenneth T. Cuccinelli, Attorney General, on brief), for appellee Commonwealth of Virginia.

No brief filed on behalf of appellee Lillian Callender.

Present: All the Justices.

OPINION BY Justice WILLIAM C. MIMS.

This appeal involves a circuit court order sealing certain exhibits introduced during a criminal trial. First, we consider whether this appeal is moot because the sealing order no longer is in effect and the exhibits now are available for public inspection. Having concluded that it is not moot, we consider whether the sealing order violates constitutional and statutory guarantees of public access to criminal proceedings.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

In August 2010, a grand jury in the City of Newport News indicted Lillian Callender and her boyfriend, Michael Stoffa, for felony child neglect of Callender's seventeen-month-old and twenty-seven-month-old daughters, and for second-degree murder of Callender's seventeen-month-old daughter. Callender and Stoffa were tried separately. Following bench trials on January 24 and May 26, 2011, respectively, Callender and Stoffa were found guilty of all three charges.

In the meantime, in March 2011, prior to Callender's sentencing and Stoffa's trial, Ashley Kelly, a reporter for The Daily Press, Inc., requested permission of the clerk of the circuit court to review the file related to Callender's trial. Specifically, Kelly requested to review the trial exhibits, including photographs of and an autopsy report concerning the deceased child. The clerk denied this request and, on March 28, 2011, the circuit court entered an order sealing the entire Callender file from public inspection until the conclusion of Callender's and Stoffa's cases (the “March 28 order”).

The Daily Press and Kelly (collectively, “Daily Press”) filed a consolidated motion to intervene and motion for withdrawal of the sealing order. The circuit court granted the motion to intervene and rescinded the March 28 order, concluding that the order “was overbroad in sealing the entire file.” However, the court expressed concern over protecting the rights of Stoffa and the Commonwealth in Stoffa's pending trial. Thus, it allowed the attorneys for Callender and the Commonwealth “to withdraw the original exhibits from the Callender file to be used in the trial of the co-defendant's [Stoffa's] case, said exhibits to be returned to the Callender file should an appeal be noted in her case (the “April 20 order”).” ¹ Daily Press requested that photocopies of the withdrawn exhibits remain in the public file, but the court instead directed that photocopies of the original exhibits be placed in the file under seal. The court subsequently ordered that the original exhibits be returned to the public file at the conclusion of Stoffa's trial (the “April 22 order”).

Daily Press petitioned the Court of Appeals for a writ of mandamus directing the circuit court to vacate the April 22 order. It argued that the April 22 order was contrary to the constitutional and statutory protections affording public access to criminal proceedings and was not the least restrictive alternative available to the court. The Court of Appeals denied the mandamus petition and, in light of that ruling, Daily Press filed a petition for appeal with the Court of Appeals. The Court of Appeals granted that petition, but subsequently held that it did not have jurisdiction to hear appeals from sealing orders. Daily Press, Inc. v. Commonwealth, 60 Va.App. 213, 222–23, 725 S.E.2d 737, 741–42 (2012). It transferred the appeal to this Court pursuant to Code § 8.01–677.1. Id. We awarded Daily Press this appeal.

II. THE MOOTNESS ISSUE

The April 22 order expired by its own terms at the conclusion of Stoffa's trial.² Furthermore, when Callender appealed her convictions in July 2011, the original exhibits were returned to the public file and sent to the Court of Appeals. Thus, Daily Press now has been able to review the exhibits. Consequently, the Commonwealth argues that the case is moot.

Generally, a case is moot and must be dismissed when the controversy that existed between litigants has ceased to exist:

Whenever it appears or is made to appear that there is no actual controversy between the litigants, or that, if it once existed, it has ceased to do so, it is the duty of every judicial tribunal not to proceed to the formal determination of the apparent controversy, but to dismiss the case. It is not the office of courts to give opinions on abstract propositions of law.... Only real controversies and existing rights are entitled to invoke the exercise of their powers.

E.C. v. Va. Dep't of Juvenile Justice, 283 Va. 522, 530, 722 S.E.2d 827, 831 (2012) (quoting Franklin v. Peers, 95 Va. 602, 603, 29 S.E. 321, 321 (1898)). However, the Supreme Court of the United States has recognized that the mootness doctrine may be inapplicable when a proceeding is short-lived by nature. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 377, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 546–47, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). “If the underlying dispute is capable of repetition, yet evading review, it is not moot.” Richmond Newspapers, Inc., 448 U.S. at 563, 100 S.Ct. 2814 (internal quotation marks and citation omitted).

The Commonwealth argues that this exception to the mootness doctrine should be applied sparingly. See Virginia Dep't of State Police v. Elliott, 48 Va.App. 551, 554, 633 S.E.2d 203, 204–05 (2006). We agree. But the controversy between the parties in this case fits squarely within the exception.

First, Daily Press, as the publisher of a daily newspaper that routinely covers cases in the Hampton Roads area, will be subjected to similar sealing orders. See Gannett Co., 443 U.S. at 377–78, 99 S.Ct. 2898. The April 22 order itself reflected the circuit court's routine administrative process. The trial judge, noting that he was “the Chief Judge for this circuit,” stated, “The [c]ourt is familiar with many cases in which the Commonwealth has [moved] to withdraw original exhibits until all defendants have been prosecuted, and the [c]ourt has frequentlygranted that motion.” (Emphasis added.) “[T]he [c]ourt has often administratively allowed [evidence admitted in the trial of a defendant], upon proper documentation, to be withdrawn” until subsequent prosecutions of related defendants are completed. The trial judge also referred to “secur[ing] the withdrawal of any exhibits by the means customarily used.” (Emphasis added.) These statements leave no doubt that this controversy is capable of repetition.

Second, if we decline to address the issues in this case on grounds of mootness, the dispute clearly will evade review. The April 22 order is “by nature short-lived.” See Nebraska Press Ass'n, 427 U.S. at 547, 96 S.Ct. 2791. By its express terms, the order expired at the conclusion of Stoffa's trial. The Commonwealth argues that there was ample time to review the order before the end of Stoffa's trial. We disagree. Criminal trials are typically of short duration and, as in this case, sealing orders will frequently be lifted before our appellate review is completed.³

More importantly, the Commonwealth's argument ignores the contemporaneousneed of a daily newspaper for access to criminal proceedings. See Gannett Co., 443 U.S. at 380, 99 S.Ct. 2898. The benefits of public access to criminal proceedings have been recognized since before the Magna Carta. Such access ensures that proceedings are conducted fairly, discourages perjury, safeguards against secret bias or partiality, and imparts legitimacy to the decisions of our judiciary.⁴See Richmond Newspapers, Inc., 448 U.S. at 569–70, 100 S.Ct. 2814. Yet, to work effectively, public access must be contemporaneous—the public must be able to scrutinize the judicial process as it takes place. Newspapers, such as Daily Press, serve as “surrogates for the public.” Id. at 573, 100 S.Ct. 2814. They are “the first rough draft of history,” ⁵ providing immediate descriptions of events as they unfold. However, the newsworthiness of a particular story is often fleeting. To delay or postpone disclosure undermines the benefits of public scrutiny and may have the same result as complete suppression.

In this case, Daily Press was prohibited from accessing the exhibits from March until July 2011, when Callender appealed her convictions and the exhibits were returned to the public file. Unlike in Commonwealth v. Harley, 256 Va. 216, 504 S.E.2d 852 (1998) and Baldwin v. Commonwealth, 43 Va.App. 415, 598 S.E.2d 754 (2004), where the issues on appeal were moot because the appellants suffered no harm, Daily Press was harmed at the time its access was restricted. Neither the expiration of the sealing order nor the later availability of the exhibits cured this deprivation of the right to contemporaneously review the files. The Commonwealth cannot use the mootness doctrine to sidestep this deprivation. If every appeal of a sealing order were moot upon the expiration of the order, the right to contemporaneous review would have no value, causing irreparable injury to the public's interest in open trials. We therefore conclude that the controversy before us is not moot. We now turn to the merits.⁶

III. THE MERITS

Daily Press argues that the April 22 order violated its constitutional and statutory right of access to criminal proceedings. We agree.

A. CONSTITUTIONAL RIGHT OF ACCESS

The public's constitutional right of access to criminal proceedings and records is...