The judiciary's really not that different

GUEST COLUMN:
Practicing lawyers have reason to want to keep judges happy and to fear judges' displeasure. Accordingly, VCOG agreed to post this contribution from one of its lawyer members anonymously.

In 2013, the Supreme Court of Virginia wrote that the benefits of public access to judicial proceedings have been recognized for hundreds of years.  The Court said that public access ensures fairness, safeguards against secret bias or partiality, and imparts legitimacy to the judiciary’s decisions.  Too bad Virginia’s judiciary doesn’t seem to believe that in practice.

With the help of Sen. Richard Stuart, Virginia’s judiciary is pushing a bill (SB 727) that would completely exempt the judiciary from the Freedom of Information Act.  The judiciary employs more than 3,000 people, processes three quarters of a billion dollars in financial transactions annually, and has a budget of more than half a billion dollars.  Judicial branch agencies regulate lawyers, administer pro bono legal assistance programs, sign contracts, design and administer the judiciary’s technology systems, promulgate sentencing guidelines, create legal reference and training materials, and research and recommend criminal justice reforms.  Under the bill, the public would lose the right to use FOIA to learn more about any of that.

The judiciary claims that the bill would respect the separation of powers.  But the General Assembly is Virginia’s policy-making branch and is directly responsive to the people, unlike the judiciary.  As Chief Justice Lemons wrote in a 2016 Supreme Court decision, the elected Executive and Legislative Branches have the dominant role in defining public policy and are where “public policy should be shaped.”  The General Assembly should regulate the courts.  And, in fact, the General Assembly does so all the time.  The central judicial bureaucracy, the Office of the Executive Secretary, was created by statute, and there are literally hundreds of sections of the Code of Virginia regulating Virginia’s courts and clerks at every level, from the Supreme Court down to General District Courts.  

For a sanity check, ask delegates and senators whether they would favor completely exempting the executive branch from FOIA and letting the governor write rules for public access.  After all, the executive is a separate branch of government too.

When it comes down to it, the judiciary just isn’t special.  You don’t have to take my word for it.  The Supreme Court of Virginia wrote in a different 2013 case that “What transpires in the court room is public property….  There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.”  

What the judicial branch does is the public’s business.  The judiciary should not be given carte blanche to deny public access.  Of course there will be some judicial records and proceedings that need to remain private.  Current law allows that, and the judiciary hasn’t identified any particular circumstance in which current legal protections are inadequate.  The idea that defeat of SB 727 would lead to disruption of judges’ deliberative process or disclosure of judge’s privileged communications is a red herring.  And if there were any actual, particular problems related to public access, they would be problems to solve with a legislative scalpel, not the sledgehammer approach of SB 727.

There is much important administrative work for Virginia’s judiciary to do.  Federal courts have had an online records system (PACER/ECF) since 2001.  Any member of the public can use PACER to access online case information and copies of case filings in any federal district or appellate court, at a per page cost that more than pays for the judiciary’s costs of operating the system.  PACER isn’t perfect by any means, but it’s light years ahead of Virginia.  Even though Virginia’s appellate courts have required most filings be made electronically for years, they don’t make those case filings available online.  Unlike the Supreme Court of the United States and courts in other states, the Supreme Court of Virginia doesn’t even make final, official copies of its decisions publicly available online.  At the trial level, Virginia’s circuit courts scan all case filings, but only lawyers can get access to those, and only after wading through annual paper work and hundreds of dollars in fees in each individual county or city.  General district courts don’t even offer that much.  One wonders why the federal FOIA exemption seems to be the only part of the federal court system that Virginia’s judiciary wants to emulate.

Apparently attempting to cast its stance in a better light, the judiciary says it will write rules regarding judicial records access by December 2018 and “is committed to working with” interested parties “to develop statewide access to online case information” by mid-2019.  Those belated and non-specific commitments in no way justify discarding current law.  

The judiciary should focus on the many ways it could improve access and transparency under current law, rather than spending time and (public!) money pushing a bill to eliminate the public’s rights.  The legislature should decline to abdicate their fundamental policymaking role.  The legislature has made some impressive strides in public access to legislative proceedings and records this year.  It should press the judiciary to do the same.