Courts

The burden is on the plaintiff to show that an action was taken in executive or closed session without reconvening in open session.

A motion to go into executive/closed session to discuss personnel issues need not identify the identity of the employee to be discussed.

An executive session/closed meeting based on the legal matters exemption is not justified by an attorney's mere presence in the room

Closed Meetings; 2.1-344(b): When Only Two Items on Agenda are Legal Matters, Motion to Confer Privately With Counsel is Valid Under Code sec. 2.1-344(a)(6) Although Whether Both Items or Particular Item Will be Considered is Not Indicated

In consolidated cases, several newspapers challenged trial court orders that closed to the public pretrial suppression hearings in three criminal prosecutions. The trial courts had overruled all objections by the newspapers. The Court reversed and vacated the trial court orders. It is unconstitutional to close pretrial hearings without an 'overriding interest articulated in findings,' and those findings should have been aired in a hearing on the merits. In addition, motions to close a hearing should be made in writing and filed with the trial court before the day of the hearing, and the public should be given reasonable notice.

A broker wanted to build a low-income residential development on land neighboring Moore, a U.Va. professor who opposed the development. The broker's application for rezoning was denied. Consequently, he published paid advertisements in The Cavalier Daily (U.Va.’s newspaper) saying Moore did "not want any black people within his sight." Moore brought a libel action alleging the advertisement injured his reputation in the university community. The Court reversed and remanded a trial court judgment for Moore. The advertisement was not defamatory per se, because the allegation of racism was not made in the context of the professor's employment as a teacher. In addition, the Court held that Moore was not a public figure as a professor or an outspoken resident. He would be entitled to recover compensatory damages upon proof of actual injury, including such elements as damage to his reputation and standing in the community, embarrassment, humiliation, and mental suffering.

The Va. Supreme Court upheld a Virginia law punishing anyone who divulged information about the proceedings of the Virginia Judicial Inquiry and Review Commission. The defendant newspaper, after identifying a judge whose conduct was being investigated by the Commission, was convicted and fined for violating the law. The Court said the law was constitutional because freedom of the press is not absolute and the Commission could not function without confidentiality. NOTE: The U.S. Supreme Court overturned this case in Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), ruling that the publication served the interests of public scrutiny and discussion of governmental affairs that the First Amendment was adopted to protect. Neither the state's interest in protecting the reputation of its judges, nor its interest in maintaining the institutional integrity of its courts, was sufficient to justify the subsequent punishment of speech.

An injunction is not justified where there is not a reasonable probability that violations of FOIA will occur again.

Charlottesville Newspapers Inc. v. Berry, 206 S.E.2d 267, 215 Va. 116 (6/19/1974)

Virginia Supreme Court

CHARLOTTESVILLE NEWSPAPERS, INC., DOUGLAS PARDUE, AND BENJAMIN F. CRITZER

v.

DAVID F. BERRY, JUDGE OF THE CIRCUIT COURT OF ALBEMARLE COUNTY

Upon a Petition for a Writ of Prohibition and Mandamus.

John C. Lowe (Edward L. Hogshire; Lowe & Gordon, on brief), for petitioners.

James E. Kulp, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for respondent.

Brown was convicted of a murder in an auto parts junkyard. A newspaper article published on the day after the killing quoted a "spokesman" for the sheriff's department who gave a different version of the facts than the prosecution later presented in court. Brown wanted to make the reporter give up the identity of that confidential source, but the trial court refused to do so. Here, the Court affirmed that decision, ruling that a journalist’s promise of confidentiality should yield only when a defendant’s need is essential to a fair trial. In this case, the Court ruled, the confidential statements would not have affected Brown’s conviction or the severity of his sentence.