A clash over the public’s right to see how Virginia courts are run is sparking a challenge to one of the basics of American politics: the checks and balances of the three branches of government.
Legislators from both parties, upset by the Virginia Supreme Court’s declaration last year that the state Freedom of Information Act doesn’t apply to the court system’s administrative agency, the Office of the Executive Secretary, have introduced bills to say it does.
And, to underscore the point, they’ve introduced a bill that overturns the high court’s 2017 decision denying the Daily Press access to a database of court docket information the office maintains on the grounds that the office did not have formal custody of the information in that public record.
“Both sides are flexing their independent branch muscle,” said Del. Mike Mullin, D-Newport News, who is sponsoring some of the bills. Del Jason Miyares, R-Virginia Beach, has also introduced the legislation.
“We’re saying the public has a right to see how the people who handle its money do their business, that the courts are subject to the law, just like the executive branch and the legislative branch are,” Mullin said.
In an Office of the Executive Secretary memo on the bills, a copy of which was obtained by the Daily Press, it calls the bills “highly problematic … their effect is to treat a separate co-equal branch of government as if it were an agency of the executive or legislative branch.”
But Megan Rhyne, executive director of the Virginia Coalition for Open Government, said the courts’ administrative office itself is a creation of the General Assembly, that the legislature approves its budget and that legislators regularly enact the rules that courts and judges must follow.
The problem came to a head in 2018 when a circuit court ruled records of how an Eastern Shore court spent its funds were not subject to the Freedom of Information Act. The Virginia Supreme Court followed suit last year with a formal rule that effectively said the court system, including its administrative office, were not subject to FOIA.
“They just went ahead and asserted this,” Rhyne said. “I can’t find any cases, any treatises that say they can do this.”
The state constitution, however, specifically says the General Assembly has the power to enact laws dealing with the administration of courts, and that it is empowered to correct the rules that the Supreme Court promulgates, Rhyne said.
The Office of the Executive Secretary talking points say judges are concerned the notes and drafts they write while a case is pending could become public if the courts were subject to FOIA, but Mullin said some four centuries of law make clear that those records are not public.
He said he’d be willing to add such an exemption to FOIA, if court officials thought it necessary.
A spokeswoman for the state courts, Kristi Wright, refused to comment when asked about the agency’s stand on the bills.
There’s been tension between the legislature and the courts for years.
While Republicans controlled the House of Delegates, its Courts of Justice committee took a hard line on limiting judicial authority.
Challenges to judges’ power to give a break to some first-time, nonviolent offenders with a “deferred disposition” order that allowed for a charge to be dismissed if the defendant kept a clean record for a period of time were one irritant.
So was the General Assembly’s fondness for setting mandatory minimum sentences that tied judges’ hands when deciding on punishments.
But with the change in control of the legislature, there’s a new attitude. One signal of where the new Democratic majority might go was Democratic Gov. Ralph Northam’s comment last year that he’d sign no more mandatory minimum sentences into law.
“I think we’re more inclined to let judges have their constitutional discretion,” Mullin said.
Dave Ress, 757-247-4535, dress@dailypress.com
