ANALYSIS OF APRIL 21, 2022 SUPREME COURT ORDER

(Posted April 25, 2022) My travel last week kept me away from the keyboard longer than I had expected, so I’m late in getting this report to you. On Thursday, the Supreme Court handed down a published order in a mandamus case, In re Bennett.

The petitioner is a judge here in Virginia Beach who found herself on the wrong end of a Judicial Inquiry and Review Commission proceeding. Last year, she filed a petition in the Supreme Court for mandamus and prohibition, seeking an order to JIRC to reinstate her to the bench. Because she filed it under the Supreme Court’s original jurisdiction, this wasn’t an appeal; it instead invoked the court’s original jurisdiction (an “OJ proceeding,” in court-insider parlance).

The Supreme Court rejected the petition the next day. But because JIRC proceedings are confidential by statute, the justices sealed the records of the mandamus case. They even sealed the sealing order, which we learn today might be unprecedented here.

A month and a half later, the publisher of the Richmond Times-Dispatch filed a motion for leave to intervene in the case because it wanted access to the records of the JIRC proceeding. The paper cited a provision in the JIRC-confidentiality statute that seems on its face to be fairly helpful: “the record of any proceeding filed with the Supreme Court shall lose its confidential character.”

Today, a slightly short-staffed Supreme Court – five active justices plus Senior Justice Millette decide the petition – affords the paper partial relief. The court unseals the records of the mandamus petition, because there’s nothing in the confidentiality statute that authorizes the sealing. But a majority of the justices stop short of ordering the unsealing of the JIRC materials in the mandamus petition. The majority holds that while mandamus petitions are traditionally open to the public, judicial-discipline proceedings aren’t.

What about that excerpt that I quoted above? Four justices find that it doesn’t apply here:

[T]he statute provides that “the record of any proceeding filed with the Supreme Court shall lose its confidential character.” Id. Any “proceeding,” in context, refers to disciplinary proceedings against a judge, not a mandamus proceeding like this one. Code § 17.1-913(A) specifies that “[a]ll records of proceedings before the Commission which are not filed with the Supreme Court in connection with a formal complaint filed with that tribunal, shall be kept in the confidential files of the Commission.” Id. (emphasis added). The mandamus filed by Judge Bennett is not “a formal complaint filed with” this Court. Therefore, the exception does not apply, and the mandate of confidentiality does apply.

Accordingly, the newspaper gets to see what the judge put in her mandamus petition, but not the underlying JIRC record, which is probably where the juicy stuff is.

Two justices can’t abide this result. Justice Kelsey, writing on behalf of Justice Chafin, offers a partial dissent in which he argues that the quoted passage commands disclosure. He adds, “This is one of those occasions in which, despite the sometimes anfractuous lexicon of the law, simple words have simple meanings.”

Okay; the word anfractuous is a bit jarring in a sentence that extols the virtue of simplicity in language. But his point is that while language can be complex, here it ought to be simple. Here’s the remainder of his argument on this point, in full:

Any JIRC proceeding includes the one involving Judge Bennett. Filed includes the JIRC documents she filed with the Supreme Court. And shall lose its confidential character means that the JIRC record cannot (as opposed to may or may not) be hidden from the public. The plain meaning of Code § 17.1- 913(A) thus maintains the confidentiality of JIRC records in disciplinary proceedings “before the Commission” but removes any secrecy surrounding these records when they are filed in a judicial proceeding before the Supreme Court of Virginia. That conclusion should be particularly true where, as here, the party clinging to the confidentiality of these documents is the very party filing them in the most public of forums.

The backdrop for this argument is that the Constitution of Virginia once mandated secrecy in judicial-discipline proceedings, but the citizens changed the constitution a generation ago. What once read, “Proceedings before [JIRC] shall be confidential” then became permissive: “”Proceedings and documents before the Commission may be confidential as provided by the General Assembly in general law.” (I’ve added emphasis both times.) The legislature then passed the statute providing that JIRC documents lose their confidential character once they land in the SCV Clerk’s inbox.

Today, a majority of the Supreme Court effectively writes that mandated transparency right out of the Code. That’s the dissenters’ conclusion. The distinction in the unsigned majority opinion rests on the definition of a proceeding; the majority rules that, in context, it refers to judicial-discipline proceedings. This was a mandamus case, so the majority finds that the statutory exception doesn’t cover it.

After pondering this ruling over the weekend, I agree wholeheartedly with the dissenters. My view might be colored by my firm support for openness in government – I’m a big FOIA advocate, for example – but it also rests on that simplicity of language that Justice Kelsey advocates. Even though it isn’t a disciplinary action, there’s no question that the mandamus petition included the filing of the entire JIRC record. In my view, the simplest and most natural interpretation of the statutory exception is that it covers “the record of [a JIRC] proceeding” that was filed in the SCV Clerk’s Office. I believe that the majority has applied a contorted interpretation of the statute, to permit it to reach this result.

Judge J. Harvie Wilkinson III of the Fourth Circuit penned a different dissent in an election-law case a year and a half ago, just before the 2020 general election. He included this warning: “More and more it appears, political parties seem to be bringing these election law challenges in an effort to gain partisan advantage. This trend is deeply disturbing. Selective interventions by the courts in these cases will create the appearance of partisanship. They undermine our most valued asset, the public’s trust and confidence in the judiciary.” Middleton v. Andino, 990 F.3d 768, 773-74 (4^th Cir. 2020).

I agree with Judge Wilkinson’s assessment of the importance of public confidence in our court system. Today’s ruling is one of many, too many, where plain language seems to counsel one result, but a court rules the opposite way. John Q. and Jane Q. Public assuredly won’t understand the fine distinction that the majority draws today. They will instead chalk this up as one more example of verbal contortions, all too typical of our profession.