In re Bennett

• Decision Date: 21 April 2022
• Docket Number: Record No. 210489
• Citation: 871 S.E.2d 445
• Parties: IN RE: Honorable Adrianne L. BENNETT, Petitioner
• Court: Virginia Supreme Court

871 S.E.2d 445

IN RE: Honorable Adrianne L. BENNETT, Petitioner

Record No. 210489

Supreme Court of Virginia.

April 21, 2022

On May 20, 2021, Judge Adrianne L. Bennett petitioned this Court under its original jurisdiction for writs of mandamus and prohibition in connection with a matter that was then pending before the Judicial Inquiry and Review Commission (JIRC). We denied the petition one day later, and ordered the record of the case sealed, including the order disposing of Judge Bennett's petition and sealing the proceedings. On July 8, 2021, Lee BHM Corporation, publisher of the Richmond-Times Dispatch ("the Publisher"), filed a "Petition for Leave to Intervene and Motion to Vacate Order Sealing a Sealing Order." The Publisher seeks "to intervene for the limited purpose of obtaining access to the order sealing the records in this case."

In considering the petition brought by the Publisher, we first note that the mandamus case has reached finality, and allowing the Publisher to intervene in a case that has ended would be improper. However, that does not end the inquiry. Under the Constitution of Virginia, this Court is vested with the "judicial power of the Commonwealth." Va. Const. art. VI, § 1. This judicial power includes the inherent authority to control our Court records, and this inherent authority includes the power to unseal a record previously ordered sealed. See, e.g. , Nixon v. Warner Commc'ns, Inc. , 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) ("Every court has supervisory power over its own records and files."); United States v. Pickard , 733 F.3d 1297, 1300 (10th Cir. 2013) (A court can unseal documents "based upon the court's inherent supervisory authority over its own files and records."). "Once a court orders documents before it sealed, the court continues to have authority to enforce its order sealing those documents, as well as authority to loosen or eliminate any restrictions on the sealed documents." Id. A court exercises this authority on a discretionary basis "in light of the relevant facts and circumstances of the particular case." Nixon , 435 U.S. at 589, 98 S.Ct. 1306.

Thus, although a petition to intervene is not the proper vehicle to obtain access to previously sealed court records once a case has become final – a party cannot intervene in a case that has reached finality – in light of the relief sought, we will treat the Publisher's petition as a motion to unseal court records, and we will proceed to address the relief sought by the Publisher.

The Publisher asks us to unseal the order sealing the proceedings regarding Judge Bennett's mandamus petition. Noting that our sealing order does not state the rationale for the sealing order, we will sua sponte examine the propriety of sealing the entire proceeding.

The United States Supreme Court has held that the First Amendment protects a qualified right of access in criminal trials. In Richmond Newspapers, Inc. v. Virginia , a trial court excluded the press and public from a murder trial in Virginia state court. 448 U.S. 555, 575-76, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). In a 7-1 decision that produced four separate opinions, the Court held that the public has a First Amendment right of access to criminal trials. Id. at 569-70, 100 S.Ct. 2814. Chief Justice Burger, who wrote the plurality opinion, examined the history of English and American criminal justice. He wrote that "the historical evidence demonstrates conclusively that ... criminal trials both here and in England had long been presumptively open" to the public. Id. at 569, 100 S.Ct. 2814. Two years later, in Globe Newspaper Co. v. Superior Court , 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), a majority of the Court adopted this view of the First Amendment. The Court examined the constitutional validity of a Massachusetts statute that required trial judges to exclude the public from the courtroom during the testimony of the victim, in situations involving certain sexual offenses and an underage victim. Id. at 602, 102 S.Ct. 2613. The Court concluded that this statute was invalid under the First Amendment. Id. at 610-11, 102 S.Ct. 2613.

In Press-Enterprise Co. v. Superior Court ( Press-Enterprise I ), a trial judge closed nearly all of the voir dire proceedings in a case involving the rape and murder of a teenage girl, reasoning that, if the press were present in the courtroom, the venire "would lack the candor necessary to assure a fair trial." 464 U.S. 501, 503-04, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). In a unanimous decision, the Supreme Court held that the First Amendment right of access extends to criminal voir dire proceedings. The Court observed that public jury selection was the "common practice in America when the Constitution was adopted," and stressed that openness "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." Id. at 508, 104 S.Ct. 819.

Two years later, in a case bearing the same name, Press-Enterprise Co. v. Superior Court (Press-Enterprise II ), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986), the Supreme Court examined whether a First Amendment right of access applies to preliminary hearings. Id. at 3, 106 S.Ct. 2735. In that case, a magistrate judge, relying on a California statute, excluded the public from a lengthy preliminary hearing in a high-profile murder prosecution in order to protect the defendant's right to a fair trial. Id. at 3-4, 106 S.Ct. 2735. The judge then refused to release the transcript of the hearing and sealed the record. Id. at 4-5, 106 S.Ct. 2735. Examining its prior decisions in Richmond Newspapers, Globe Newspaper , and Press-Enterprise I , the Court adopted "tests of experience and logic" courts should employ in assessing whether the First Amendment protects a right of access to a specific judicial proceeding. Id. A court must first consider "whether the place and process have historically been open to the press and general public" (the "experience" prong). Id. at 8, 106 S.Ct. 2735. Second, the court must assess "whether public access plays a significant positive role in the functioning of the particular process in question" (the "logic" prong). Id. at 9, 106 S.Ct. 2735. If both prongs are met, a First Amendment right of access attaches to the proceeding in question, which can be denied only if the government's justification for closure withstands strict scrutiny. "These considerations of experience and logic are, of course, related, for history and experience shape the functioning of governmental processes. If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches." Id. at 9, 106 S.Ct. 2735.

Applying this test, the Court concluded that preliminary hearings have historically been open to the public and thus, the "experience" prong was satisfied. Id. at 10-11, 106 S.Ct. 2735. Turning to the "logic" prong, the Court reasoned that in California, preliminary hearings are "sufficiently like a trial to justify the ... conclusion" that public access "is essential to the proper functioning of the criminal justice system." Id. at 11-12, 106 S.Ct. 2735. Finding both prongs satisfied, the Court held that a qualified First Amendment right of access attached to the preliminary hearing. Id. at 13, 106 S.Ct. 2735.

The Supreme Court has not since its decisions in Press-Enterprise I and II had occasion to revisit its conclusion that the First Amendment provides a broad but not unlimited right of access to criminal trials and trial-like proceedings. Additionally, the Court has not addressed whether the experience and logic test mandates a right of access to other judicial activities, including civil proceedings and court records. In El Vocero de Puerto Rico v. Puerto Rico , 508 U.S. 147, 113 S.Ct. 2004, 124 L.Ed.2d 60 (1993), the Court did clarify one aspect of the "experience" prong of the Press-Enterprise II test. The Court held that in determining whether the historical record establishes a "tradition of open[ness]," id. at 150, 113 S.Ct. 2004, a court "does not look to the particular practice of any one jurisdiction, but instead ‘to the experience in that type or kind of hearing throughout the United States.’ " Id.

Although the United States Supreme Court has not addressed the point, we conclude that the same qualified right of access to proceedings and records that the Court has recognized in criminal cases should also be recognized in "civil trials and to their related proceedings and records." N.Y. Civil Liberties Union v. N.Y.C. Transit Auth. , 684 F.3d 286, 298 (2d Cir. 2012).

Relying on this guidance, we will review the Publishers request for the records of the mandamus proceeding using the two-step inquiry. First, we will examine whether there has been a history of public access to the records and proceedings. If such a right of access exists, the proceeding or records are presumptively open to the public. Under the second part of the test, proceedings can be closed, or the records sealed, if closing the proceeding or sealing the record is necessary to serve a compelling interest, and is narrowly tailored to serve that interest.

The present case was unprecedented because it concerned a request for judicial relief against a proceeding that is statutorily protected from disclosure to the public. Thus, the request to seal the proceedings in our Court was also unprecedented. Our review of the records prompts us to revisit our order sealing the records of the mandamus proceeding and to exercise our authority to unseal this order as requested by the Publisher. Orders from this Court have long been accessible to the public. In addition, in the interest of openness and transparency, we further unseal the remainder of the case sua sponte, with the exception of attachments to the petition for a writ of mandamus. Mandamus proceedings have a long tradition of...