The Virginia Supreme Court ruled today that a newspaper may be convicted and fined for publishing the name of a judge being investigated by the state's Judicial Review Commission.
The court upheld, 6 to 1, the conviction of the Virginian Pilot newspaper of Norfolk for the 1975 publication of a story about the state commission's investigation of a judge on "charges of incompetence."
The court held that the disclosure of the investigation of a judge is "so contrary to the public interest it constitutes substantive evil of immediate and serious peril to the orderly administration of justice."
In Washington, an official of the Reporters Committee for Freedom of the Press, a national group concerned with such cases, called the ruling "outrageous" and said it threatens to reverse a trend toward greater press protection under the U.S. Constitution guarantee of a freedom of the press.
Reaction from officals of The Virginian-Pilot, however, was more subdued. Perry Morgan, publisher and executive editor of Landmark Communications Inc., the Pilot's parent company, said an appeal to the U.S. Supreme Court is almost certain.
The case is apparently the first in the nation dealing with the rights of news organizations to report on the activities of judicial review commissions. These are investigative agencies used in 35 states to study complaints about the conduct and behavior of state court judges. All of the states require that the commissions meet and act in secrecy, the Virginia court ruling said.
According to the court's majority ruling, the five-member Virginia commission, composed of judges and lawyers, "could not function properly or discharge effectively its intended purpose" in public. "Thus," the court said, criminal penalties "are indispensable to the suppression of a clear and present danger posed by the premature disclosure of th commission's sensitive proceedings . . ."
Only one member of the court dissented from the view. Justice Richard H. Poff, a former Republican congressman named to the court in 1972 by then Gov. Linwood Holton, said "there is utterly no evidence" in the case showing that the story posed the "clear and present danger" which the majority opinion cited.
In its 17-page decision, the court majority quickly dismissed that point. Justice Harry L. Carrico, who wrote the majority opinion, said the danger was so obvious that the lower court judge who convicted the newspaper company didn't even need to hear any "courtroom evidence" on the point.
Indeed, the court said, the case illustrates "matters involving a serious and substantive evil - the imminent and substantial threat to the orderly administration of justice . . ." Judges need the protection of secrecy to protect their reputations from "frivolous complaints," the court said.
Secrecy also "protects confidence in the judicial system" and "protects" complaining witnesses from "possible recrimination" by judges, the court said. (The initial phases of an investigation are kept secret even from the judge.)
In its appeal of its conviction and $500 fine, Landmark's lawyers had argued that the First Amendment protected its story. And, at any rate, making disclosure of the commission proceedings illegal applied only to persons who attended the secret commission hearings, the lawyers argued. However, the court also dismissed that contention as "unreasonable" and said the newspaper had "clearly" violated tha law.
"I'm thunderstruck by it," said Jack Landau, director of the Reporters Committee after learning of the ruling. "I don't know of any case like it in the nation," he said.
"George Mason would turn over in his grave if he knew," Landau said. Mason was an 18th century Virginian who drafted the Virginia Declaration of Rights, on which the first 10 amendments to the U.S. Constitution, which include the guarantee of a free press, are based.
After today's ruling, Norfolk Commonwealth's Attorney Joseph H. Campbell said he plans to drop charges pending in Norfolk Circuit Court against Pilot reporter Steven Goldberg, 26, who wrote the story. Goldberg was indicted along with the newspaper publishing company in November, 1975. If convicted, Goldberg could have faced a fine of up to $1,000 and 12 months in jail.
Campbell, who initiated the case a month after the newspaper published a story on Juvenile and Domestic Relations Court Judge H. Warrington Sharp, said he had decided to drop the charge against Goldberg because a Pilot editor had testified that he, not Goldberg, made the decision to publish the story.
Sharp resigned from his position last year and the commission did not file a complaint against him with the State Supreme Court. The commission's complaints against judges are made public when they are filed with the Supreme Court.
Only two judges have ever been brought before the state's highest court on charges and both were censured.In most cases, according to legislators familiar with the commission, it attempts to have the judges resign quietly without any adverse publicity.
At least two other Virginia newspapers recently have published stories similar to the one involved in the Norfolk case, but neither newspaper has been indicted. Deputy Attorney General Reno S Harp III, who serves as the commission's counsel, said today any decision to prosecute other newspapers would be up to the commonwealth's attorney in that locality.
He refused to say how many cases the commission hears in a year, citing the secrecy law. "I can't even say that," he said.