The Virginia Business Litigation Blog
Virginia Code § 19.2-266 governs media coverage of judicial proceedings and provides that a court “may solely in its discretion” permit photographs and broadcasting. Elsewhere, the statute specifies that “for good cause shown,” the presiding judge may prohibit or restrict coverage. Yesterday, the Supreme Court of Virginia clarified the seemingly ambiguous language of this statute in Virginia Broadcasting Co. v. Commonwealth.
The trial of George Huguely V for the murder of his on-again off-again girlfriend Yeardly Love was sensational news. Huguely and Love were young, attractive student athletes at the University of Virginia, with privileged pasts and bright futures engaged in a volatile relationship. The case was covered extensively in the media, but the court did not allow cameras in the courtroom during the trial. The court also refused to allow Virginia Broadcasting Company (“VBC”) to have a camera in the courtroom during Huguely’s sentencing hearing, and VBC appealed the decision.
The trial court, the Circuit Court of the City of Charlottesville, held a hearing on VBC’s request to record the sentencing proceedings. VBC argued that concerns about the impact of cameras on jurors and witnesses were not implicated in a sentencing hearing and that neither the Commonwealth nor Huguely had offered evidence of prejudice or established good cause for keeping a camera out of the hearing. Both the Commonwealth and Huguely opposed VBC’s request, arguing that cameras would have a detrimental impact on witnesses testifying at the hearing. Huguely asserted that VBC had not articulated any change in circumstances that would warrant the trial court’s reconsideration of its previous ruling to keep cameras out of the courtroom. Concerned about the effects of cameras on the witnesses and the effect of coverage on witnesses and jurors in a pending civil case that Love’s family had filed against Huguely, the trial court denied VBC’s request.
In a motion to reconsider, VBC argued that Virginia Code § 19.2-266 required the Commonwealth and Huguely to establish good cause for excluding cameras. The trial court denied the motion, and VBC appealed.
On appeal, the Virginia Supreme Court first addressed whether the issue was subject to appellate review at all. The Commonwealth argued that because § 19.2-266 gives the trial court sole discretion to decide whether to allow cameras, its decision is not subject to review. The court examined the Virginia Code’s usage of the phrase “sole discretion” in various 
statutes. In some instances, the Code grants sole discretion to a decision maker and explicitly states that the decision is not subject to judicial review. The court found that when the General Assembly wished to curtail judicial review, it so stated. Since § 19.2-266 did not specifically prohibit judicial review, the trial court’s decision was subject to review.
Next, although the parties did not raise the issue, the court held that the question of whether cameras were properly excluded from the courtroom was not moot even though the sentencing hearing already had occurred. When a proceeding is short-lived in nature, and the underlying dispute is “capable of repetition yet evading review,” it is not moot. Here, VBC is likely to make future requests to broadcast a judicial proceeding. If the court declined to address the issue as moot, the dispute would evade review since criminal trials are typically of short duration and the proceeding would most likely conclude before appellate review is complete.
The court went on to examine the seemingly ambiguous language of Virginia Code § 19.2-266 which initially states that a court may “solely in its discretion” permit media coverage of proceedings, but later, under a separate “Coverage Allowed” section, provides that “[f]or good cause shown,” the presiding judge may prohibit coverage in any case. The court had to determine whether a trial court has sole discretion to determine whether to allow media in the courtroom or whether an objecting party must show good cause why media should not be allowed. When a statute is ambiguous like this, a court will look beyond its plain language to its legislative history.
The court found that § 19.2-266 originally prohibited cameras in the courtroom altogether. In 1987, the General Assembly created an experimental program to allow electronic media and still photography in a limited number of courts. To reflect this change, the statutory language was amended to describe the experimental program and to include guidelines for the few courts that were to participate in the program. The guidelines provided that the judge shall advise the parties of media coverage in advance and allow the parties to object and that for “good cause shown,” the judge may prohibit or restrict coverage. In 1992, the experimental program ended and the statute was revised to permit the use of cameras subject to certain limitations.
The court found that the 1992 revisions were intended to give the trial court great discretion in making the initial determination whether to permit still photography or cameras in the courtroom by including the phrase “solely in its discretion.” The guidelines under “Coverage Allowed” were originally drafted to apply to the few courts participating in the experimental program, but the 1992 revisions retained the guidelines so that once a court had made a decision to permit coverage, it would have guidelines to follow to ensure that coverage was handled correctly.
The court concluded that the statute in its present form gives trial courts the sole discretion to determine whether to permit media in the courtroom. The trial court is not required to explain its reasons for denying a media request. If a court determines to allow electronic media, an objecting party must then show good cause why the coverage should be restricted or prohibited. Here, the trial court made an initial decision not to allow coverage; therefore, the “Coverage Allowed” guidelines and the “good cause” standard were not implicated. Accordingly, the decision of the trial court to disallow media coverage of Huguely’s sentencing hearing was affirmed.