ANALYSIS OF MAY 18, 2023 SUPREME COURT OPINION

(Posted May 18, 2023) For the second time in three weeks, we get a significant decision interpreting Virginia’s Freedom of Information Act. The case is Gloss v. Wheeler and arises in Prince William County.

Wheeler chairs the County’s Board of Supervisors. When protests in Manassas and Gainesville arose – eventually growing into what county officials called riots – five days after the killing of George Floyd by a Minneapolis police officer in May 2020, county police officials notified members of the Board. The Board chair met with police shortly after noon the next day, May 31, and then attended a meeting of the police department’s Citizens’ Advisory Board at 1:00. Four other members of the Board also attended; the other three members weren’t made aware of the meeting.

At the CAB meeting, the Board of Supervisors chair addressed the audience and another Board member asked the police chief for an “after-action report” on events of the previous evening. At 4:00 that afternoon, all eight members attended a properly noticed emergency meeting of the Board to discuss the disturbance and the police response to it. At this meeting, the three excluded members of the Board learned of the CAB meeting that had begun just three hours earlier.

Several citizens sued the five attendees, claiming that their appearance at the CAB meeting violated the open-meetings requirement of FOIA. At the ensuing trial, the circuit court granted a motion to strike the citizens’ evidence, concluding that the CAB meeting was only for informational purposes and not for the conduct of public business.

That ruling draws spirited debate among the justices this morning. By a 5-2 vote, the Supreme Court reverses and sends the case back to circuit court for a retrial. Justice Russell, writing for the majority, cites the legislative presumption of openness and the required “thumb on the scale” in favor of expansive interpretation of FOIA protections. The majority rules that “a topic is ‘public business’ for the purpose of Code § 2.2-3701 if it is either ‘pending before’ the public body at the time or it is ‘likely to . . . come before it in the future.’”

The chief justice, joined by Justice Powell, reasons that the majority’s rule would stifle open discussions, not prompt them. The dissenters perceive that there’s a difference between public business and a mere topic of discussion, so even an expansive reading of FOIA wouldn’t encompass the meeting at issue here.

Here are a couple of things that caught my eye in my stroll through the opinions. First, the majority cites a concession by the supervisors’ lawyer in oral argument that the majority’s reasoning would “logically follow from a ‘literal reading’ of” prior caselaw. Appellate advocates are well aware of the dangers of concessions made at the lectern; many an appeal has found itself scuttled by a lawyer who wasn’t circumspect enough to decline to concede something.

But the dissent doesn’t see it as a concession at all. Here, judge for yourself:

The unprecedented definition which is being criticized in this dissent is the assertion that certain topics constitute public business. The response perceived and cited by the majority as a concession (to the majority’s assertion that a topic can be public business regardless of the context in which it is discussed or by whom) was in response to a question regarding whether business that was likely to be on the agenda in the future could be public business, and the defendants replied: “That is a literal reading of Beck and I urge the Court to look at that case and that context when evaluating this case because that was a very different . . . that was a very different set of circumstances there.” That statement by defendant Board members is not a concession that a general topic can be considered to be public business.

In fairness, I agree with the dissent that this is far from an unqualified concession; the lawyer for the supervisors did what he could to distinguish the prior caselaw. This highlights the risks attendant to answering “will you concede …” questions in oral argument with anything less than a robust refusal to concede.

One other significant point in my mind: The citizens brought this lawsuit in 2020, shortly after the CAB meeting. After the trial but before entry of final judgment, the supervisors moved the court to reconsider its ruling, which it had announced from the bench at trial. The circuit court entered an order on May 18, 2021 that denied the reconsideration motion; this was evidently the final order in the case.

I’ll do the math for you: May 18, 2021 is two years ago today. It took this case two full years to proceed from final judgment below to a final appellate judgment. Note that because the citizens appealed in 2021, this case didn’t get diverted to the Court of Appeals first; it went straight to the Supreme Court.

This, my treasured readers, is what I call a problem. Here’s the timeline, including the approximate time elapsed at each stage:

• May 18, 2021 Circuit court enters final judgment
• October 12, 2021 The record arrives in Richmond (5 months)
• April 21, 2022 Writ granted (6 months)
• July 7, 2022 Merits briefing complete (2½ months)
• November 1, 2022 Oral argument in the November session (4 months)
• May 18, 2023 Final appellate ruling (6½ months)

That’s how you get to two years. Most of the earlier entries on this list are fairly normal time spans, though they each – other than the merits briefing – seem to be toward the longer end of the normal range. The most significant outlier is the last one. The Supreme Court entertained oral argument in this appeal 28 weeks ago, one of the longest delays I’ve seen since the court moved to rolling release dates for opinions in 2015.

I hasten to add that this case has features that tend to lengthen the time for a decision. It’s a matter of significant public interest, and it features a lengthy dissent. Where there’s a split vote, the authors of the majority and dissenting opinions share their drafts with each other, allowing the other to respond in writing. That often generates new passages that themselves call for revisions in the opposite draft; the process goes back and forth until the two authors are satisfied with the product.

But make no mistake: Judging from the statistics that I keep, including a copy of each argument schedule going back almost eight years, a six-month delay is extraordinary. I mention this not to be critical but to inform my readers who advise appellate litigants. The time it takes to resolve an appeal can be quite long, and your clients will want to know that.