IN THE CIRCUIT COURT OF THE CITY OF RICHMOND
Allan D. Zaleski,
Judicial Inquiry and Review Commission,
OPINION AND ORDER
The parties appeared for argument on the demurrer to the bill of
Proceeding under the Virginia Freedom of Information Act,
plaintiff seeks disclosure of an advisory opinion given by Counsel
to the Judicial Inquiry Review Commission to a judge who verbally
made the request and to whom a verbal opinion was given.
Plaintiff believes that counsel for the Commission was required
to reduce the verbal request and answer to a written record. See
Supreme Court of Virginia Order Creating the Judicial Ethics and
Advisory Committee Paragraph 37. He further argues that such a
writing is a public record subject to disclosure under the Virginia
Freedom of Information Act Chapter 37 of Title 2.2 of the Code of
Defendant, Judicial Inquiry and Review Commission, asserts that
all such records are confidential and cannot be disclosed under Va.
Code Ann §17.1-913.
Section 17.1-913 of the Code provides in pertinent part:
"All papers filed with and proceedings before the
Commission . . . shall be confidential and shall not be divulged by
any person who (i) either files a complaint with the Commission, or
receives such complaint in an official capacity; (ii) investigates
such complaint; (iii) is interviewed concerning such complaint by a
member, employee or agent of the Commission; or (iv) participates
in any proceeding of the Commission or in the official recording or
transcription thereof, . . . .["]
The materials requested by the plaintiff are not "papers
filed" before the Commission. The issue here is whether any
record involved was the record of a "proceeding" before
the Commission? If so, the paper is required to remain
confidential. If not, the paper is subject to disclosure under the
Freedom of Information Act.
"Proceeding" is not defined in the statute nor in
Supreme Court rules relating to the Commission.
In its order establishing the Judicial Ethics Advisory
Committee, the Supreme Court provided that Commission counsel would
serve the Advisory Committee and, under certain circumstances,
could provide verbal informal opinions. Counsel is required to
reduce that transaction to record. This is the material plaintiff
The Commission argues that a request for an advisory opinion is
a proceeding within the meaning of Va. Code §17.1-913.
"Proceeding" has been defined as "broad enough
to cover any act, measure, step or all steps in a course taken in
conducting litigation civil or criminal." Sigmon v.
Commonwealth, 200 Va. 258 (1985) citing with approval. Words
and phrases Vol. 34, page 162. Black’s Law Dictionary 7th Ed.
Page 1221 devotes more than half of a page to several definitions
or characterizations of "proceeding." The most
applicable here are
"1. The regular and orderly progression of a lawsuit,
including all acts and events between the time of commencement and
entry of judgment. 2. Any procedural means for seeking redress from
a tribunal or agency. 3. An act or step that is part of a larger
The last of those definitions is more in keeping with the
general understanding that a proceeding is more than a request for
information such as is involved in this case. That concept is also
embodied in the definition employed by the Supreme Court is
Sigmon v. Commonwealth, supra.
Section 17.1-913 itself suggests this interpretation which
provides that papers and proceedings shall not be divulged by a
person who (i) files a complaint, (ii) investigates a complaint,
(iii) is interviewed concerning a complaint or who (iv)
participates in or who records a proceeding. Each of these
activities contemplates more than a question of Counsel and an
answer. They contemplate activity such as that described above.
Guided by those principles and by the plain meaning of the word
"proceeding," it is the opinion of this court that a
judge’s request of counsel for the Commission for an opinion
regarding future conduct is not a proceeding. Any record made of
such inquiry and answer is not confidential and is subject to
disclosure under the Virginia Freedom of Information Act. No
opinion is expressed regarding inquiries of past conduct as that is
not before the court.
It is, therefore, ORDERED that the demurrer is overruled. The
Commission is granted 21 days within which to further plead should
it be so advised.
Copies of this order are mailed this day to counsel of
/s/ T. J. Markow, Judge