Virginia Broadcasting Corp. v. Commonwealth

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PRESENT: All the Justices
VIRGINIA BROADCASTING CORPORATION
v.  Record No. 122013
COMMONWEALTH OF VIRGINIA, ET AL.

       OPINION BY
JUSTICE DONALD W. LEMONS
    OCTOBER 31, 2013

      FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                    Edward L. Hogshire, Judge

     In this appeal, we consider whether the Circuit Court of
the City of Charlottesville ("trial court") erred in denying
Virginia Broadcasting Corporation's ("VBC") request to have a
camera in the courtroom to broadcast the sentencing of George W.
Huguely, V.

                    I.  Facts and Proceedings
     George W. Huguely, V ("Huguely") was tried and convicted in

February 2012, of murdering his former girlfriend, Yeardley Love
("Love").  Both Huguely and Love were students at the University
of Virginia at the time of Love's death.  Huguely's subsequent
trial received extensive publicity.  On April 16, 2012, VBC, the
owner of a television station in Charlottesville, Virginia,
filed a "Request for Electronic Media and/or Still Photography
Coverage of Judicial Proceedings," in the trial court,
requesting permission to broadcast Huguely's sentencing hearing,
which was scheduled for August 30, 2012.  The trial court had
previously denied VBC's request to have a camera in the
courtroom during Huguely's trial.

     The trial court held a hearing on VBC's request on July 25,
2012.  At the hearing, VBC argued that because this was a
sentencing hearing, many of the trial court's concerns about the
impact of cameras on jurors and witnesses, which had been
expressed during the hearing on VBC's request to broadcast the
portion of the trial to determine guilt or innocence, would no
longer be implicated.  VBC argued there was no "good cause for
keeping a camera out of the sentencing" hearing, and that any
"prejudice to the defendant in this case is just almost de
minimus at this point in the proceedings."

     The Commonwealth and Huguely both opposed having cameras in
the courtroom for the sentencing hearing.  The Commonwealth
argued that the cameras would have a detrimental impact on any
witnesses testifying at the sentencing hearing.  Huguely also
argued that having a camera in the courtroom and live coverage
of the hearing would have a negative impact on the proceedings,
and could influence the testimony of certain witnesses.  Huguely
asserted that VBC had failed to articulate any substantial
change in circumstances that would warrant the trial court's
reconsideration of its previous ruling to keep cameras out of
the courtroom.

     VBC responded that neither the Commonwealth nor Huguely had
offered evidence of prejudice or established good cause for
excluding cameras from the sentencing hearing.  The trial court

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explained that it was concerned about the effect of cameras on
the witnesses at the sentencing hearing and the effect of
coverage on potential witnesses and jurors in a pending civil
suit that Love's family had filed against Huguely.  The trial
court denied VBC's request.

     VBC filed a motion for reconsideration and maintained that
the trial court was treating print media and broadcast media
differently.  VBC asserted and that "[t]he First Amendment to
the United States Constitution as well as Article [I], Section
12 of the Constitution of Virginia affords the same protections
to all newsgathering activities, regardless whether the media
form is print or broadcast," and therefore the trial court was
required to grant its request.  VBC also argued that no evidence
was presented to establish "good cause" for excluding cameras
from the courtroom.  VBC asserted that the arguments of counsel
and the court's speculation about the possible effects of
cameras on witnesses or on some future civil action were not
evidence and did not constitute "good cause" as required by Code
§ 19.2-266.  The trial court denied the motion for
reconsideration without a hearing.

     VBC filed a petition for appeal with this Court, and we

awarded an appeal on the following assignments of error:

1.   The trial court erred by failing to apply a "good cause
     shown" standard, instead believing that it had unfettered
     discretion pursuant to Section 19.2-266 of the Code of

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     Virginia to prohibit the use of a camera during the
     sentencing of Mr. George Huguely.

2. 2.    The trial court erred in denying Virginia Broadcasting's
        request to use a camera to cover the sentencing of Mr.
        George Huguely because there was no "good cause shown"
        pursuant to Section 19.2-266 of the Code of Virginia since
        no evidence was presented in the record to support that
        finding.
   

3. 3.    The trial court erred in relying on its own speculation and
        the speculations of counsel for Mr. George Huguely and the
        Charlottesville Commonwealth's Attorney in denying Virginia
        Broadcasting Corporation's request for electronic media
        coverage of the sentencing of Mr. George Huguely.
   

4. 4.    The trial court erred in holding that Virginia Broadcasting
        Corporation's newsgathering and reporting activities via
        electronic media were entitled to no protection under the
        First Amendment to the United States Constitution or the
        Constitution of Virginia, including its denial of Virginia
        Broadcasting's request to use a camera to acquire the news
        while allowing the print media to use the primary tools of
        its trade.
   

   II. Analysis
   A. Standard of Review

        The Commonwealth asserts in its brief that because Code §
   

19.2-266 provides that the decision whether to permit cameras in
a courtroom is "solely" within the discretion of the trial
court, such a decision is not subject to review by this or any
other court.  The question whether a circuit court’s exercise of
its discretion under Code § 19.2-266 is subject to appellate
review involves a matter of statutory interpretation, a pure
question of law which we review de novo.  See Osman v. Osman,
285 Va. 384, 389, 737 S.E.2d 876, 878 (2013).

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     The General Assembly has used the phrase "sole discretion"
in several other instances in the Code.  See, e.g., Code § 19.2-
163(2) (granting trial judge "sole discretion" to determine
amount paid appointed counsel); Code § 22.1-294(D) (granting
school board "sole discretion" to reassign and reduce salary of
principal, assistant principal or supervisor); Code § 44-93.2
(for member of Virginia National Guard, Virginia Defense Force,
or naval militia, choice of leave to take from nongovernmental
employment shall be "solely within the discretion of the
member"); and Code § 51.1-156(H) (Medical Board's decision to
waive ninety-day notification period is "solely in its own
discretion").

     In three other instances, the Code not only grants sole
discretion to a decision maker, but states that such a decision
is not subject to judicial review.  See, e.g., Code § 2.2-
4011(D) (allowing Governor in his "sole discretion" to approve
an extension of emergency regulation and such approval "shall
not be subject to judicial review"); Code § 10.1-104.6(E)
(allowing Virginia Soil and Water Conservation Board, director,
or court sole discretion to agree to supplemental environmental
project, a decision which "shall not be subject to appeal");
Code § 2.2-3014(C) (granting State Inspector General "sole
discretion" in splitting whistleblower reward and such decision
"shall not be appealable").

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We have repeatedly said that, "[w]hen interpreting and applying a statute, we 'assume that the General Assembly chose, with care, the words it used in enacting the statute, and we are bound by those words.'" Kiser v. A.W. Chesterton Co., 285 Va. 12, 19 n.2, 736 S.E.2d 910, 915 n.2 (2013) (quoting Halifax Corp. v. First Union Nat'l Bank, 262 Va. 91, 100, 546 S.E.2d 696, 702 (2001)); accord Rives v. Commonwealth, 284 Va. 1, 3, 726 S.E.2d 248, 250 (2012). Therefore, "'when the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional.'" Rives, 284 Va. at 3, 726 S.E.2d at 250,(quoting Zinone v. Lee's Crossing Homeowners Ass'n, 282 Va. 330, 337, 714 S.E.2d 922, 925 (2011)).

     The General Assembly has granted "sole discretion" to make
certain decisions in several instances in the Code.  The General
Assembly has also explicitly stated in at least three of those
situations that such a decision is not subject to judicial
review.  Code § 19.2-266 contains no such language removing the
trial court's decision from judicial review.  We hold that the
trial court's decision under Code § 19.2-266 is subject to
judicial review, albeit under a highly deferential abuse of
discretion standard.

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B. Mootness
Huguely's sentencing hearing has already taken place. VBC

was not permitted to broadcast the hearing.  Generally, a case
is moot and must be dismissed when the controversy that existed
between litigants has ceased to exist.  The Daily Press, Inc. v.
Commonwealth, 285 Va. 447, 452, 739 S.E.2d 636, 639 (2013).
Neither party asserts that the matter is moot, but their
agreement cannot resolve the question for the Court. "Whenever
it appears ... that there is no actual controversy between the
litigants ... it is the duty of every judicial tribunal not to
proceed to the formal determination of the apparent controversy,
but to dismiss the case."  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, as we recently explained in Daily Press,

          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, Inc., 448 U.S.
          at 563 (internal quotation marks and
          citation omitted).

285 Va. at 452, 739 S.E.2d at 639.  This case fits squarely
within this exception to the mootness doctrine.

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     First, VBC, as the owner of a television station that
routinely covers trials in the Central Virginia area, is likely
to make future requests to broadcast judicial proceedings.
Second, if we decline to address the issues in this case on the
grounds of mootness, the dispute will evade review.  The trial
court entered the order denying VBC's request for electronic
media coverage of the sentencing hearing on August 30, 2012, the
day of the hearing VBC wished to broadcast.  VBC had no
opportunity to appeal that order before the sentencing hearing
occurred.  As we discussed in Daily Press, "[c]riminal trials
are typically of short duration," and the trial or other
judicial proceedings would likely be concluded before our
appellate review is completed.  Id. at 453, 739 S.E.2d at 639.
Accordingly, we conclude that the controversy before us is not
moot, and we now turn to the merits.

C. Code § 19.2-266
VBC argues that the trial court should have applied the

good cause shown standard in Rule 1 of the statute when deciding
whether to deny VBC's request to broadcast the sentencing
hearing.  The Commonwealth argues that the decision whether to
permit cameras in the courtroom was solely within the trial
court's discretion.

     It is well-settled that "we determine the General
Assembly's intent from the words contained in the statute."

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in courtrooms. 1992 Acts ch. 557.  Specifically, the second and
third paragraphs of the statute were revised to appear in their
current form, as follows:

          A court may solely in its discretion permit
          the taking of photographs in the courtroom
          during the progress of judicial proceedings
          and the broadcasting of judicial proceedings
          by radio or television, and the use of
          electronic or photographic means for the
          perpetuation of the record or the parts
          thereof in criminal and in civil cases, but
          only in accordance with the rules hereunder.
          In addition to such rules, the Supreme Court
          and the Court of Appeals shall have the
          authority to promulgate any other rules they
          deem necessary to govern electronic media
          and still photography coverage in their
          respective courts.  The following rules
          shall serve as guidelines, and a violation
          of these rules may be punishable as
          contempt:

                        Coverage Allowed.

1. The presiding judge shall at all times have authority to prohibit, interrupt or terminate electronic media and still photography coverage of public judicial proceedings. The presiding judge shall advise the parties of such coverage in advance of the proceedings and shall allow the parties to object thereto. For good cause shown, the presiding judge may prohibit coverage in any case and may restrict coverage as he deems appropriate to meet the ends of justice.

Code § 19.2-266 (emphasis added).  The phrase "may solely in its
discretion" replaced the prior language "shall not."  The
language that originally stated the guidelines applied only to
courts in the experimental program was removed, and the

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guidelines became part of this statute without any further
revisions or modifications.

     The 1992 revisions to Code § 19.2-266 demonstrate that when
the General Assembly changed the statute from one which did not
permit cameras in the courtroom to one which did, it clearly
intended to give the trial court great discretion in making the
initial determination whether to permit still photography or
cameras in the courtroom.  The General Assembly included the
phrase "solely in its discretion," a phrase which clearly gives
great discretion to a trial court when making its decision.

     The guidelines, entitled "Coverage Allowed," were
originally drafted only to apply to the six courts where
coverage was allowed under the experimental program.  Clearly,
they were only intended to be implicated once coverage had been
permitted through the experimental program.  In 1992, when the
General Assembly ended the experimental program and gave courts
the power to decide whether to permit coverage, it left the
guidelines in the statute so that once a court had made a
decision to permit coverage, that court had the guidelines to
follow to ensure that such coverage was handled properly.

              E. Application of Legislative History
                       to Code § 19.2-266

     From this legislative history, we conclude that Code §
19.2-266 in its current form gives trial courts the sole

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discretion to determine whether to permit the taking of
photographs in the courtroom or the broadcasting of judicial
proceedings by radio or television.  Logically, the power to
permit coverage also includes the power to not permit coverage.
It is only after a trial court has made a decision to permit
electronic media in the courtroom that the guidelines listed in
Code § 19.2-266 under the heading "Coverage Allowed" are
implicated.  If coverage is permitted, the statute provides that
such coverage must be conducted "in accordance with the rules
set forth hereunder."  Code § 19.2-266.

     A trial judge who has made the initial decision to permit
electronic media in the courtroom must then comply with all the
guidelines, including Rule 1 of the statute, and "shall advise
the parties of such coverage" in advance of the proceeding.  In
accordance with Rule 1, if a party objects to the coverage, then
the party must show good cause why the coverage should be
restricted or prohibited.  Essentially, the objecting party must
demonstrate good cause why the trial judge's initial decision to
permit coverage should be reversed, and coverage prohibited or
restricted in some manner.

     VBC cites the decisions of the Court of Appeals in Diehl v.
Commonwealth, 9 Va. App. 191, 385 S.E.2d 228 (1989), and Novak
v. Commonwealth, 20 Va. App. 373, 457 S.E.2d 402 (1995), as
support for its position that the "good cause" standard applies

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to the trial court's decision to permit or prohibit coverage.
However, in both of those cases the trial court had already made
an initial determination to permit coverage.  The court, the
parties, and the media were then required to comply with the
guidelines, including Rule 1 as set out in Code § 19.2-266.  The
defendants, who opposed coverage, accordingly had the burden of
demonstrating "good cause" to prohibit or restrict the coverage.
The trial court and Court of Appeals found that in both cases
the defendants had failed to demonstrate "good cause."  Diehl, 9
Va. App. at 197, 385 S.E.2d at 232; Novak, 20 Va. App. at 390-
91, 457 S.E.2d at 410.  These cases do not support VBC's
argument that the trial court had to apply the good cause
standard in its initial determination whether to permit cameras
in the courtroom. They involve factual scenarios where the trial
court had already made an initial decision to permit cameras,
and therefore the guidelines, including Rule 1 and its good
cause standard, had become applicable.

     The trial court in this case made an initial determination
not to permit electronic media in the courtroom.  The initial
decision whether to permit electronic media coverage in the
courtroom is solely within the discretion of the trial court.
Code § 19.2-266.  Because coverage was not permitted, the
"Coverage Allowed" guidelines, including Rule 1, were never
implicated.  Accordingly, we hold that that the trial court did

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not abuse its discretion by failing to apply a good cause shown
standard in its initial determination whether to permit coverage
of Huguely's sentencing hearing.

     We acknowledge that, in practice, a request for media
coverage is filed and a hearing is often held before the trial
court, "solely in its discretion," makes its initial decision.
That hearing may consist only of argument from the parties, or
the parties may put on evidence.  But under the statute, a
hearing is not required prior to a court’s initial determination
whether to permit coverage.

     If, however, a trial court makes the decision to permit
coverage, it is then required to advise the parties of its
decision in advance of the proceedings.  If a trial court
permits coverage, then a party requesting further restriction or
prohibition must demonstrate good cause for such further action.

     The trial court in this case was not required to apply the
good cause standard for its initial determination whether to
permit a camera in the courtroom.  Such a decision is made in
the court’s sole discretion.  There is no requirement that
evidence be presented to the trial court to support the initial
decision, and the trial court is not required to explain its
reasons for denying a request.

     In this case, the trial court did explain its reasons for
denying VBC's request at the conclusion of the July 25, 2012

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hearing.  The trial court articulated its concerns about the
effect of cameras in the courtroom and the world-wide coverage
of the case on potential witnesses, and how broadcasting the
sentencing hearing might impact potential jurors in a pending
civil suit against Huguely.  The reasons the trial court gave on
the record for denying this request do not constitute an abuse
of discretion.

     The Supreme Court of the United States has long recognized
"that witness testimony may be chilled if broadcast."
Hollingsworth v. Perry, 558 U.S. 183, 194, (2010); see also
Estes v. Texas, 381 U.S. 532, 547 (1965).  The trial judge in
the present case explained that the witnesses in the Huguely
case were young, almost all college-aged, that the media
coverage of the trial had been "intense," and that he was very
concerned about how the media coverage would impact their
willingness to come forward and testify.  The Supreme Court of
the United States has held that cameras in a courtroom can have
a chilling effect on witnesses.  It was not an abuse of
discretion for the trial court to consider that factor when
deciding whether to permit coverage of the sentencing hearing.

     The trial court also expressed its concern that enhanced
media coverage would further impact potential jurors in a
pending civil suit against Huguely.  The trial court was
certainly within its discretion to consider the impact media

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coverage could have on a pending civil suit involving the
defendant and the victim's family.  The trial court also
properly considered the opposition of both the Commonwealth and
Huguely to the request.

             F. No Constitutional Right to Broadcast
                      Criminal Proceedings

     VBC's last assignment of error contends that "the trial
court erred in holding that [VBC's] newsgathering and reporting
activities via electronic media were entitled to no protection
under the First Amendment to the United States Constitution or
the Constitution of Virginia, including its denial of [VBC's]
request to use a camera to acquire the news while allowing the
print media to use the primary tools of its trade."  VBC
correctly acknowledges in its opening brief to this Court that
neither the Supreme Court of the United States nor this Court
have held that a broadcaster has a constitutional right to use
cameras in court to gather and report the news.  Additionally,
VBC conceded at oral argument that there is no constitutional
right to have cameras in a courtroom.

                         III. Conclusion
     We hold that the trial court did not abuse its discretion

when it denied VBC's request to have a camera in the courtroom
during Huguely's sentencing hearing, and we will affirm its
judgment.

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