PRESENT: All the Justices
THE DAILY PRESS, INC., ET AL.
OPINION BY
v. Record No. 120858 JUSTICE WILLIAM C. MIMS
February 28, 2013
COMMONWEALTH OF VIRGINIA, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
H. Vincent Conway, Jr., Judge
This appeal involves a circuit court order sealing certain
exhibits introduced during a criminal trial. First, we
consider whether this appeal is moot because the sealing order
no longer is in effect and the exhibits now are available for
public inspection. Having concluded that it is not moot, we
consider whether the sealing order violates constitutional and
statutory guarantees of public access to criminal proceedings.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
In August 2010, a grand jury in the City of Newport News
indicted Lillian Callender and her boyfriend, Michael Stoffa,
for felony child neglect of Callender’s seventeen-month-old and
twenty-seven-month-old daughters, and for second-degree murder
of Callender’s seventeen-month-old daughter. Callender and
Stoffa were tried separately. Following bench trials on
January 24 and May 26, 2011, respectively, Callender and Stoffa
were found guilty of all three charges.
In the meantime, in March 2011, prior to Callender’s
sentencing and Stoffa’s trial, Ashley Kelly, a reporter for The
Daily Press, Inc., requested permission of the clerk of the
circuit court to review the file related to Callender’s trial.
Specifically, Kelly requested to review the trial exhibits,
including photographs of and an autopsy report concerning the
deceased child. The clerk denied this request and, on March
28, 2011, the circuit court entered an order sealing the entire
Callender file from public inspection until the conclusion of
Callender’s and Stoffa’s cases (the “March 28 order”).
The Daily Press and Kelly (collectively, “Daily Press”)
filed a consolidated motion to intervene and motion for
withdrawal of the sealing order. The circuit court granted the
motion to intervene and rescinded the March 28 order,
concluding that the order “was overbroad in sealing the entire
file.” However, the court expressed concern over protecting
the rights of Stoffa and the Commonwealth in Stoffa’s pending
trial. Thus, it allowed the attorneys for Callender and the
Commonwealth “to withdraw the original exhibits from the
Callender file to be used in the trial of the co-defendant’s
[Stoffa’s] case, said exhibits to be returned to the Callender
file should an appeal be noted in her case (the “April 20
order”).” 1 Daily Press requested that photocopies of the
withdrawn exhibits remain in the public file, but the court
instead directed that photocopies of the original exhibits be
1
Callender filed an appeal in July 2011.
2
placed in the file under seal. The court subsequently ordered
that the original exhibits be returned to the public file at
the conclusion of Stoffa’s trial (the “April 22 order”).
Daily Press petitioned the Court of Appeals for a writ of
mandamus directing the circuit court to vacate the April 22
order. It argued that the April 22 order was contrary to the
constitutional and statutory protections affording public
access to criminal proceedings and was not the least
restrictive alternative available to the court. The Court of
Appeals denied the mandamus petition and, in light of that
ruling, Daily Press filed a petition for appeal with the Court
of Appeals. The Court of Appeals granted that petition, but
subsequently held that it did not have jurisdiction to hear
appeals from sealing orders. Daily Press, Inc. v.
Commonwealth, 60 Va. App. 213, 222-23, 725 S.E.2d 737, 741-42
(2012). It transferred the appeal to this Court pursuant to
Code § 8.01-677.1. Id. We awarded Daily Press this appeal.
II. THE MOOTNESS ISSUE
The April 22 order expired by its own terms at the
conclusion of Stoffa’s trial. 2 Furthermore, when Callender
2
Stoffa’s trial concluded in May 2011. The Court of
Appeals denied Stoffa’s petition for appeal in April 2012, and
this Court refused Stoffa’s second-tier petition for appeal in
August 2012. Thus, even if the “conclusion” of Stoffa’s
criminal trial included any direct appeals in addition to the
circuit court prosecution, that case has concluded.
3
appealed her convictions in July 2011, the original exhibits
were returned to the public file and sent to the Court of
Appeals. Thus, Daily Press now has been able to review the
exhibits. Consequently, the Commonwealth argues that the case
is moot.
Generally, a case is moot and must be dismissed when the
controversy that existed between litigants has ceased to exist:
Whenever it appears or is made to appear that
there is no actual controversy between the litigants,
or that, if it once existed, it has ceased to do so,
it is the duty of every judicial tribunal not to
proceed to the formal determination of the apparent
controversy, but to dismiss the case. It is not the
office of courts to give opinions on abstract
propositions of law . . . . Only real controversies
and existing rights are entitled to invoke the
exercise of their powers.
E.C. v. Va. Dep’t of Juvenile Justice, 283 Va. 522, 530, 722
S.E.2d 827, 831 (2012) (quoting Franklin v. Peers, 95 Va. 602,
603, 29 S.E. 321, 321 (1898)). However, the Supreme Court of
the United States has recognized that the mootness doctrine may
be inapplicable when a proceeding is short-lived by nature.
See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
563 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 377
(1979); Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 546-47
(1976). “If the underlying dispute is capable of repetition,
yet evading review, it is not moot.” Richmond Newspapers,
4
Inc., 448 U.S. at 563 (internal quotation marks and citation
omitted).
The Commonwealth argues that this exception to the
mootness doctrine should be applied sparingly. See Virginia
Dep’t of State Police v. Elliott, 48 Va. App. 551, 554, 633
S.E.2d 203, 204-05 (2006). We agree. But the controversy
between the parties in this case fits squarely within the
exception.
First, Daily Press, as the publisher of a daily newspaper
that routinely covers cases in the Hampton Roads area, will be
subjected to similar sealing orders. See Gannett Co., 443 U.S.
at 377-78. The April 22 order itself reflected the circuit
court’s routine administrative process. The trial judge,
noting that he was “the Chief Judge for this circuit,” stated,
“The [c]ourt is familiar with many cases in which the
Commonwealth has [moved] to withdraw original exhibits until
all defendants have been prosecuted, and the [c]ourt has
frequently granted that motion.” (Emphasis added.) “[T]he
[c]ourt has often administratively allowed [evidence admitted
in the trial of a defendant], upon proper documentation, to be
withdrawn” until subsequent prosecutions of related defendants
are completed. The trial judge also referred to “secur[ing]
the withdrawal of any exhibits by the means customarily used.”
5
(Emphasis added.) These statements leave no doubt that this
controversy is capable of repetition.
Second, if we decline to address the issues in this case
on grounds of mootness, the dispute clearly will evade review.
The April 22 order is “by nature short-lived.” See Nebraska
Press Ass’n, 427 U.S. at 547. By its express terms, the order
expired at the conclusion of Stoffa’s trial. The Commonwealth
argues that there was ample time to review the order before the
end of Stoffa’s trial. We disagree. Criminal trials are
typically of short duration and, as in this case, sealing
orders will frequently be lifted before our appellate review is
completed. 3
More importantly, the Commonwealth’s argument ignores the
contemporaneous need of a daily newspaper for access to
criminal proceedings. See Gannett Co., 443 U.S. at 380. The
benefits of public access to criminal proceedings have been
recognized since before the Magna Carta. Such access ensures
that proceedings are conducted fairly, discourages perjury,
safeguards against secret bias or partiality, and imparts
legitimacy to the decisions of our judiciary. 4 See Richmond
3
The fact that Daily Press was unable to obtain expedited
review of the April 22 order through a writ of mandamus
underscores the evasive nature of the present dispute.
4
Significant societal value has also been recognized from
public access to criminal proceedings: when a shocking crime
occurs, a community reaction of outrage typically follows, and
6
Newspapers, Inc., 448 U.S. at 569-70. Yet, to work
effectively, public access must be contemporaneous – the public
must be able to scrutinize the judicial process as it takes
place. Newspapers, such as Daily Press, serve as “surrogates
for the public.” Id. at 573. They are “the first rough draft
of history,” 5 providing immediate descriptions of events as they
unfold. However, the newsworthiness of a particular story is
often fleeting. To delay or postpone disclosure undermines the
benefits of public scrutiny and may have the same result as
complete suppression.
In this case, Daily Press was prohibited from accessing
the exhibits from March until July 2011, when Callender
appealed her convictions and the exhibits were returned to the
public file. Unlike in Commonwealth v. Harley, 256 Va. 216,
504 S.E.2d 852 (1998) and Baldwin v. Commonwealth, 43 Va. App.
415, 598 S.E.2d 754 (2004), where the issues on appeal were
moot because the appellants suffered no harm, Daily Press was
harmed at the time its access was restricted. Neither the
expiration of the sealing order nor the later availability of
the exhibits cured this deprivation of the right to
thereafter the open process of justice serves an important
prophylactic purpose, providing an outlet for community concern
and emotion. See Richmond Newspapers, Inc., 448 U.S. at 570-
71.
5
Alan Barth popularized this phrase as an editorial writer
for the Washington Post in the 1940s.
7
contemporaneously review the files. The Commonwealth cannot
use the mootness doctrine to sidestep this deprivation. If
every appeal of a sealing order were moot upon the expiration
of the order, the right to contemporaneous review would have no
value, causing irreparable injury to the public’s interest in
open trials. We therefore conclude that the controversy before
us is not moot. We now turn to the merits. 6
III. THE MERITS
Daily Press argues that the April 22 order violated its
constitutional and statutory right of access to criminal
proceedings. We agree.
A. CONSTITUTIONAL RIGHT OF ACCESS
The public’s constitutional right of access to criminal
proceedings and records is well-established. The Supreme Court
of the United States has held that “the right to attend
criminal trials is implicit in the guarantees of the First
Amendment.” 7 Richmond Newspapers, Inc., 448 U.S. at 580. This
6
The Commonwealth now concedes that the sealing order was
erroneous. However, we do not allow parties to define Virginia
law by their concessions. See Tuggle v. Commonwealth, 230 Va.
99, 111 n.5, 334 S.E.2d 838, 846 n.5 (1985); Logan v.
Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005)
(en banc) (“Our fidelity to the uniform application of law
precludes us from accepting concessions of law made on
appeal.”). Consequently, we will consider the merits.
7
Daily Press asserts that it has a constitutional right of
access under the First Amendment of the Constitution of the
United States and Article I, § 12 of the Constitution of
Virginia. These provisions are virtually identical. See,
8
constitutional right of access extends to the inspection of
documents filed in such proceedings. Globe Newspaper Co. v.
Commonwealth, 264 Va. 622, 628, 570 S.E.2d 809, 812 (2002).
Although the right of access to criminal proceedings is of
constitutional stature, it is not absolute. See Nebraska Press
Ass’n, 427 U.S. at 570. However, the circumstances in which
criminal trial exhibits can be sealed are limited. The
public’s right of access can only be denied upon a strong
showing of a compelling governmental interest, and any closure
must be narrowly tailored to serve that interest. Globe
Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982).
The governmental interest asserted here as the basis for
the sealing order was Stoffa’s Sixth Amendment right to a fair
trial. In assessing whether closure is appropriate, there is a
presumption in favor of openness. Richmond Newspapers, Inc.,
448 U.S. at 573. This presumption can only be overcome if
specific findings are made that: (1) there is a substantial
probability that the defendant’s right to a fair trial will be
prejudiced by publicity and that closure would prevent that
e.g., Black v. Commonwealth, 262 Va. 764, 785, 553 S.E.2d 738,
750 (2001) (Hassell, C.J., dissenting) (observing that “[t]he
freedom of speech guaranteed by Article I, § 12 of the
Constitution of Virginia is co-extensive with the protections
guaranteed by the First Amendment of the Constitution of the
United States”), aff’d in part, vacated in part, and remanded,
538 U.S. 343 (2003). Thus, for purposes of this opinion, we
make no distinction between them.
9
prejudice; and (2) reasonable alternatives to closure cannot
adequately protect the defendant’s fair trial rights. Press-
Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986). To
ensure stringent safeguarding of the constitutional rights at
stake, courts are required to justify any decision to close
with specific reasons and findings on the record. Id. at 13.
We will review such findings de novo. In re Charlotte
Observer, 882 F.2d 850, 853 (4th Cir. 1989).
In this case, the circuit court failed to make specific
findings necessary to justify the sealing order. The court’s
rationale for sealing the exhibits was the possibility that
they might be used in Stoffa’s impending trial. The court
expressed concerns over (1) potential prejudice from
publication of the information contained in the exhibits; and
(2) physical damage to the original exhibits that could affect
their admissibility in Stoffa’s trial. These rationales were
speculative and not supported by particularized factual
findings.
First, there was no evidence that publication of the
information contained in the exhibits would prejudice Stoffa’s
right to a fair trial, or that sealing the exhibits would
prevent any such prejudice. At the time of the March 28 and
April 22 orders, Stoffa was scheduled to be tried without a
jury, which made concerns over tainting the jury pool
10
irrelevant. 8 Furthermore, while protecting the original
exhibits from damage was a valid concern, the April 22 order
was not the least restrictive means to satisfy it. The court
could have protected the rights of Stoffa and the Commonwealth,
while also protecting the public’s right of access, by allowing
the original exhibits to be withdrawn but requiring photocopies
of the exhibits to remain in the public file.
B. CODE § 17.1-208
Daily Press also argues that the April 22 order violated
the statutory presumption of open court records. Code § 17.1-
208 explicitly states that any records and papers maintained by
the clerk “shall be open to inspection by any person.” With
respect to our analysis, Code § 17.1-208’s statutory
presumption of access is equivalent to the constitutional right
of access. Court documents can only be sealed on the basis of
“an interest so compelling that it cannot be protected
reasonably by some measure other than a protective order,” and
“any such order must be drafted in the manner least restrictive
of the public’s interest.” Shenandoah Publ’g House, Inc. v.
Fanning, 235 Va. 253, 259, 368 S.E.2d 253, 256 (1988).
8
Stoffa subsequently could have elected to be tried by a
jury. However, this possibility alone was not a sufficient
rationale for sealing the exhibits. The court could have
considered concerns regarding a potential jury at a later date,
through less restrictive alternatives such as extensive voir
dire or jury instructions addressing prejudice. See Press-
Enterprise Co., 478 U.S. at 15.
11
For the same reasons that the April 22 order violated the
Constitution of the United States and the Constitution of
Virginia, it also violated Code § 17.1-208. There was no
showing of a compelling governmental interest that justified
permitting the exhibits to be withdrawn from the Callender file
and copies of those exhibits to be placed under seal.
IV. CONCLUSION
Accordingly, we will vacate the order of the circuit
court.
Vacated.
12