Shenandoah Pub. House, Inc. v. Fanning, 850146

• Decision Date: 22 April 1988
• Docket Number: No. 850146,850146
• Citation: 368 S.E.2d 253,235 Va. 253
• Parties: , 56 USLW 2640, 15 Media L. Rep. 1659 SHENANDOAH PUBLISHING HOUSE, INC. v. Virginia K. FANNING, Executrix, etc., et al. Record
• Court: Virginia Supreme Court

Page 253

368 S.E.2d 253

235 Va. 253, 56 USLW 2640, 15 Media L. Rep. 1659

SHENANDOAH PUBLISHING HOUSE, INC. v. Virginia K. FANNING, Executrix, etc., et al.

Record No. 850146.

Supreme Court of Virginia.

April 22, 1988.

James L. Berry, Winchester, for appellant.

Phillip C. Stone (Ronald D. Hodges, Douglas G. Schneebeck, Wharton, Aldhizer & Weaver, Harrisonburg, on brief), for appellees Winchester Memorial Hosp. and H. George White, M.D.

No briefs or arguments for Virginia K. Fanning, Executrix of the Estate of Walter A. Fanning, Deceased, Winchester Orthopaedic Associates, Ltd., Richard A. Creasy, M.D., Winchester Anesthesiologists, Inc. and V. Miller, C.R.N.A.

David C. Kohler (Alexander Wellford, Christian, Barton, Epps, Brent & Chappell, Richmond, on brief), amicus curiae for Virginia Press Ass'n, Virginia Ass'n of Broadcasters, Richmond Professional Chapter, Soc. of Professional Journalists, Sigma Delta Chi, and Virginia Press Women, for appellant.

Present: CARRICO, C.J., POFF, COMPTON, STEPHENSON, RUSSELL, and THOMAS, JJ., and GORDON, Retired Justice.

POFF, Justice.

The issues framed on this appeal stem from challenges to several protective orders entered in a wrongful death case that sealed the discovery data, pleadings, and all the records in that case including the final order approving a compromise settlement.

On December 20, 1982, Virginia K. Fanning, executrix of the estate of Walter A. Fanning, filed a motion for judgment against several individual and corporate defendants seeking damages for the wrongful death of the decedent. In separate counts, the pleading alleged that death was the proximate result of acts and omissions constituting medical malpractice, breach of contract and warranty, and assault and battery. The defendant health care providers filed responsive pleadings, and the parties engaged in extensive discovery proceedings.

At the request of all parties, the trial court entered an order on October 24, 1983. Confirming oral instructions to the clerk, the order sealed all "the files of this cause" and "the contents of the record". The order further provided that "the news media ... shall be notified of the entry of this order with opportunity to be heard thereon on 10/31/83 at 8:00 AM."

Shenandoah Publishing House, Inc., moved for leave to intervene, the trial court granted the motion, and the parties filed legal memoranda and argued the question whether the court had erred in entering the October 24 order. In an order dated November 28, 1984 incorporating a letter opinion, the court ruled that "the file and pleadings in this case shall remain sealed."

The parties to the civil suit reached a compromise settlement, and granting their petition, the court entered an order December 12, 1984 approving the settlement. See Code § 8.01-55. Responding to a motion filed jointly by the parties, the court entered an order December 27, 1984 sealing the petition and the December 12 order.

As entered of record, the December 27 order also provided that "the remaining portions of this file be ... unsealed." Apparently, this provision had been included in a tentative draft of the order, and the page containing that provision mistakenly had been attached to the order the trial court signed. Accordingly, when the court learned of the clerical error, it entered a new order dated February 12, 1985, nunc pro tunc December 27, 1984, deleting that provision and sealing all "the file and pleadings in this case".

We granted Shenandoah an appeal. Virginia Press Association; Virginia Association of Broadcasters; The Richmond Professional Chapter, Society of Professional Journalists, Sigma Delta Chi; and Virginia Press Women, requested leave to appear on brief amici curiae in support of Shenandoah's appeal, and we granted the request. As stated by Shenandoah, the questions raised by its several assignments of error are whether the public and, derivatively, the news media, have a constitutional, common-law, or statutory right of access to the records in a civil case and, if so, "[w]hat is required to seal a civil record?" The public's right to attend and observe the conduct of a civil trial is not in issue in this appeal.

I. PREFACE

To facilitate our analysis, we separate the data sealed by the trial court into two classes. Although the compromise settlement obviated the conduct of an adversarial trial, we will call the first class "pretrial documents". This class includes all data assembled by the parties in the discovery process authorized by Part Four of the Rules of Court, Rules 4:0 through 4:14. We will refer to the second class as "judicial records". The documents in this class include the pleadings and any exhibits or motions filed by the parties and all orders entered by the trial court in the judicial proceedings leading to the judgment under review.

II. THE JUDICIAL RECORDS

The First and Fourteenth Amendments of the United States Constitution implicitly guarantee the public a qualified right of access to a criminal trial. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973 (1980) (Richmond Newspapers I ). In Richmond Newspapers I, the United States Supreme Court, reviewing the history of criminal trials in England and colonial America, concluded that "a presumption of openness inheres in the very nature of a criminal trial under our system of justice." Id. at 573, 100 S.Ct. at 2825. The Court noted, however, that its holding "does not mean that the First Amendment rights of the public and representatives of the press are absolute." Id. at 581 n. 18, 100 S.Ct. at 2829-30. In a later opinion written by the same author, the Court explained:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984).

We have adopted and applied the principles and standards articulated in Richmond Newspapers I. Eschewing a First Amendment analysis in Richmond Newspapers v. Comm., 222 Va. 574, 281 S.E.2d 915 (1981) (Richmond Newspapers II ), we declared orders closing preliminary hearings in three criminal cases unconstitutional under Article I, Section 12, of the Virginia Constitution, and we held that "intervention [by the public] is necessary to give substance to the qualified right of access". ¹ Id. [235 Va. 258] at 590, 281 S.E.2d at 923. Until now, we have not been asked to decide, and the United States Supreme Court never has decided expressly, whether the public has a constitutional right of access to judicial records in civil trials and, if so, whether that right is absolute or qualified.

We find it unnecessary to conduct a constitutional analysis. Code § 17-43 provides in part:

The records and papers of every court shall be open to inspection by any person and the clerk shall, when required, furnish copies thereof, except in cases in which it is otherwise specially provided.

The broad sweep of this language is significant. It makes no distinction between criminal and civil proceedings. In legislative history, Code § 17-43 extends back to the Code of 1849 that references Acts of the Assembly "1820-21, p. 104, ch. 74, § 1." Construing the language of the statute as it has endured for more than a century, we conclude that the General Assembly intended to recognize the generally accepted common-law rule of openness and to declare its power to make statutory exceptions to the rule.

Such a conclusion was implicit in our decision in Charlottesville Newspapers v. Berry, 215 Va. 116, 206 S.E.2d 267 (1974). There, a trial judge had closed the file in a civil proceeding, verbally instructed all involved not to disclose "any matter which took place", and directed that the judicial records in all subsequent civil cases remain closed "until 21 days have elapsed from the date of ... filing". Id. at 117, 206 S.E.2d at 267-68. Finding "no statutory authority" for the judge's action and nothing in the record "justifying such actions under his inherent power", we ruled that the judge "shall not ... deny public access to ... pleadings, motions, and suit papers in ... new civil actions". Id. at 118, 206 S.E.2d at 268.

In light of the legislative history of Code § 17-43 and its common-law underpinnings, we are of opinion that, subject to statutory exceptions, a rebuttable presumption of public access applies in civil proceedings to judicial records as we have defined that term. We further believe that, to overcome that presumption, the moving party must bear the burden of establishing an interest so compelling that it cannot be protected reasonably by some measure other than a protective order, see Nebraska Press Assn. v. Stuart, 427 U.S. 539, 563-65, 96 S.Ct. 2791, 2804-05, 49 L.Ed.2d 683 (1976) (suggesting as possible alternatives, change of venue, postponement of trial, sequestration of jurors), and that any such order must be drafted in the manner least restrictive of the public's interest. We adopt the procedural guidelines announced in Richmond Newspapers II, 222 Va. at 590-91, 281 S.E.2d at 923-24, and those stated in Press-Enterprise Co., 464 U.S. at 510, 104 S.Ct. at 824 (quoted above).

Although it appears that the procedures followed below did not comply fully with these guidelines, we note that, once advised of the media's interest in access, the trial court ordered that the media "be notified of the entry of [the original sealing] order with opportunity to be heard"; scheduled a special hearing for Shenandoah's benefit; permitted Shenandoah to intervene in the proceedings; and heard argument and considered adversary memoranda on the issue Shenandoah raised. We...