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motion to intervene and rescinded the March 28 order,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.




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