Landmark Communications, Inc. v. Com., 760596

• Decision Date: 04 March 1977
• Docket Number: No. 760596,760596
• Citation: 217 Va. 699,233 S.E.2d 120
• Court: Virginia Supreme Court
• Parties: , 2 Media L. Rep. 1449 LANDMARK COMMUNICATIONS, INC. v. COMMONWEALTH of Virginia. Record

Page 120

233 S.E.2d 120

217 Va. 699, 2 Media L. Rep. 1449

LANDMARK COMMUNICATIONS, INC. v. COMMONWEALTH of Virginia.

Record No. 760596.

Supreme Court of Virginia.

March 4, 1977.

Conrad M. Shumadine, Richmond (David Y. Faggert, Glenn W. Hampton, Kaufman, Oberndorfer & Spainhour, Norfolk, on brief), for plaintiff in error.

James E. Kulp, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

CARRICO, Justice.

The principal question in this case involves a confrontation between the First Amendment guaranty of freedom of the press and a Virginia statute which imposes criminal sanctions for breach of the confidentiality of proceedings before the Judicial Inquiry and Review Commission. A preliminary question is whether the appellant-newspaper is subject to the proscription of the statute.

Creation of the Judicial Inquiry and Review Commission was mandated by Article VI, Section 10 of the 1971 Constitution of Virginia for the purpose of investigating charges concerning disabled and unfit judges. The constitutional provision specifies that "(p)roceedings before the Commission shall be confidential."

The Commission was actually created by the General Assembly in 1971, at its session held to implement the new constitution. (1971 Va.Acts Spec.Sess. ch. 154; Va.Code §§ 2.1-37.1 et seq.) In the act creating the Commission, its powers and duties are outlined with detail. By the terms of Va.Code § 2.1-37.4, the Commission is empowered to investigate charges "which would be the basis for retirement, censure, or removal of a judge under § 10 of Article VI of the Constitution." If the Commission finds the charges well-founded and sufficient to constitute the basis for retirement, censure, or removal of a judge, it shall file a formal complaint with this court. ¹

Virginia Code § 2.1-37.13 ² provides in pertinent part that "(a)ll papers filed with and proceedings before the Commission . . . including the identification of the subject judge . . . shall be confidential and shall not be divulged by any person to anyone except the Commission, except that the record of any proceeding filed with the Supreme Court shall lose its confidential character." The Code section provides further that "(a)ny person who shall divulge information in violation . . . of this section shall be guilty of a misdemeanor."

The appellant, Landmark Communications, Inc., publishes The Virginian-Pilot, a newspaper of general circulation in the Tidewater area of Virginia. On October 4, 1975, the newspaper published an article stating that the Commission had conducted a "formal hearing concerning possible disciplinary action against" a judge, identified by name, of a court not of record in the City of Norfolk. The article recited further that the hearing "apparently stemmed from charges of incompetence against the . . . judge."

On November 5, 1975, Landmark was indicted for unlawfully divulging the identity of a judge who was "the subject of an investigation and hearing by the Judicial Inquiry and Review Commission." Upon trial of the indictment by the court without a jury, it was stipulated that Landmark had published the article in question; that the Commission had investigated charges and conducted hearings concerning the judge named in the article; and that, at the time of the publication, the Commission had not filed a complaint with this court respecting the judge. ³ Landmark was convicted of the charge laid in the indictment, and it was fined the sum of $500.00.

On appeal, Landmark contends that it is unclear from a reading of Va.Code § 2.1-37.13 whether the statute's proscription against divulging information concerning a Commission proceeding applies not only to the participants in such a proceeding but also to a newspaper which publishes information obtained from one of the participants. Because the statute is penal in nature, Landmark argues, it must be strictly construed, and any doubt or ambiguity concerning its application must be resolved against the Commonwealth and in favor of one accused of its violation.

When the doubt or ambiguity in § 2.1-37.13 is so resolved, Landmark asserts, the statute should be construed to mean that a violation may occur only upon "the first act of disclosure . . . by an individual who had actually participated in some manner in the proceedings of (the) Commission." Under this construction and the circumstances of this case, Landmark concludes, the information concerning the judge in question "lost its confidentiality" and "became public upon its first disclosure" by a participant in the proceedings, and all Landmark did was to publish information "which was voluntarily and freely given to it." ⁴

While we agree with Landmark that the statute must be construed strictly, we disagree with the remainder of its argument. We hold that Va.Code § 2.1-37.13 does not suffer the doubt or ambiguity asserted by Landmark.

In unmistakable terms, the statute states that all information concerning a proceeding before the Commission, including the identity of the judge who is the subject of the inquiry, shall be confidential and that this confidentiality shall continue until a formal complaint against the judge is filed with this court. So far as is pertinent here, only upon the filing of such a complaint is the record of a proceeding before the Commission placed in the public domain; only then does information concerning a proceeding before the Commission lose its confidential character.

Until a complaint is filed with this court, the proscription of the statute is applicable to punish any person who divulges any information concerning a proceeding before the Commission. Although Landmark is a corporation, by the force of Va.Code § 1-13.19, ⁵ it is a "person" within the meaning of Va.Code § 2.1-37.13. To "divulge" information means to disclose it or to make it known. Black's Law Dictionary 567 (4th ed. 1951). When Landmark published its article, it disclosed or made known to the public at large information which still was confidential.

The proscription of Va.Code § 2.1-37.13 is so clear that it would be unreasonable to construe the statute, as Landmark interprets it, to mean that only the participants in a Commission proceeding are subject to the prescribed sanctions or that only the first disclosure of confidential information is actionable. Clearly, Landmark's actions violated Va.Code § 2.1-37.13 and rendered it liable to imposition of the sanctions prescribed by the statute.

But, Landmark contends, to impose upon it the sanctions prescribed by Va.Code § 2.1-37.13 would unconstitutionally abridge its First Amendment guaranty of freedom of the press. This contention poses the serious question in the case and presents an issue not decided previously by this court or, so far as our research discloses, by any other appellate court in this country. The importance of the question is emphasized when it is considered that 34 jurisdictions in addition to Virginia, by constitutional provision, statute, or rule, require confidentiality of proceedings before bodies similar to our Judicial Inquiry and Review Commission. ⁶

The First Amendment provides that "Congress shall make no law . . . abridging the freedom . . . of the press." Clearly, "the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 556, 96 S.Ct. 2791, 2801, 49 L.Ed.2d 683, 696 (1976). Freedom of the press, however, is not an absolute right, and the state may punish its abuse. Near v. Minnesota, 283 U.S. 697, 708, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). But when and under what circumstances a state may punish such an abuse is the difficult question, given the uncertainty created by the numerous decisions interpreting First Amendment rights.

From a review of the decisions of the United States Supreme Court involving restrictions upon First Amendment freedom of the press, it appears that the cases fall into three general categories: (1) denial of right of access to information; (2) prior restraint upon publication; and (3) subsequent punishment for publication. The present case involves no denial of access; Landmark concedes that it has no greater constitutional right of access than the general public to information concerning Commission proceedings. See Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974).

While conceding that it is "difficult to determine whether the instant case is a 'prior restraint' or 'subsequent punishment' case," Landmark contends that Va.Code § 2.1-37.13 does impose a prior restraint upon publication. Prior restraints, Landmark asserts, bear a heavy presumption against their constitutional validity, New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), and are permissible only (1) to protect the national security, (2) to prevent the publication of obscenity, and (3) to prohibit expression associated with situations which tend to incite acts of violence and the overthrow by force of government. Near v. Minnesota, 283 U.S. at 716, 51 S.Ct. 625. Because the publication in the present case does not fall within one of these exceptions, Landmark concludes, the prior restraint imposed by Va.Code § 2.1-37.13 is constitutionally impermissible.

We are of opinion, however, that Va.Code § 2.1-37.13 does not impose a prior restraint upon publication. Generally, prior restraints take the form of injunctions, requirements for licenses or permits, or censorship or previous review. Murphy, The Prior Restraint Doctrine in the Supreme Court: A Reevaluation, 51 Notre Dame Lawyer 898 (1975-1976). A prior restraint "has an immediate and irreversible...