The ACLU of Virginia has filed legal papers asking the Virginia Supreme Court to uphold a lower court decision allowing public access to informal ethical advice offered to judges by the Virginia Judicial Inquiry and Review Commission.
JIRC, which reviews and investigates complaints filed against judges and offers informal advice on ethical matters, operates largely in secret. However, only “a paper filed with or proceeding before” JIRC is exempt from the state’s Freedom of Information Act, which requires government bodies to make their records available to the public upon request. The ACLU maintains that informal ethical advisories for judges, which are delivered orally but summarized in writing, are not exempt from the FOIA.
The ACLU represents Norfolk lawyer Allan Zaleski, who was denied a copy of an informal ethics advisory issued by JIRC at the request of Norfolk Circuit Court Judge Charles D. Griffith, Jr. Griffith had been asked to recuse himself from presiding over a parole revocation case because he had earlier served as the prosecuting attorney in a case against the same defendant. Griffith refused to recuse himself and offered that JIRC had advised him that he could continue to preside over the case. This led to Zaleski’s request a copy of the JIRC advisory opinion issued to Griffith.
“In Virginia, you have a right to see government documents unless the General Assembly has explicitly taken them off the table,” said ACLU of Virginia executive director Kent Willis. “Besides, there is no reason to hide advice given to judges on legal ethics. We’re all better off if this kind of information is kept in the light of day.”
In November 2004, a Richmond Circuit court judge ruled that JIRC advisory opinions are not exempt from the FOIA and ordered JIRC to release to Zaleski the advisory opinion issued to Griffith. JIRC then asked the Virginia Supreme Court to take the case and reverse the lower court order. The ACLU has asked the Virginia Supreme Court to reject the appeal, allowing the lower court ruling to stand.
ACLU of Virginia legal director Rebecca K. Glenberg represents Zaleski. The case is Judicial Inquiry and Review Commission v. Allan D. Zaleski. The ACLU’s Opposition to Petition for Appeal and Cross-Petition for Appeal, filed yesterday afternoon, is available by contacting the ACLU.

ACLU of Virginia Contacts: Kent Willis, Executive Director Rebecca K. Glenberg, Esq., Legal Director 804-644-8022