On August 8, 2022, Fletcher, Heald & Hildreth filed a petition with the Court of Appeals of Virginia for a writ of mandamus directed to the Circuit Court of Fairfax County, Virginia to compel Judge Penney S. Azcarate to release copies of transcripts relating to the Depp v. Heard case or to compel the Fairfax County Circuit Court Clerk, John Frey, to furnish copies of the transcripts.  The Court of Appeals concluded that mandamus does lie for the Clerk of Fairfax County Circuit Court but does not as to the circuit court judge.

The two main contentions that the Court of Appeals had to consider were 1) whether the Court of Appeals had jurisdiction to issue a writ of mandamus in this matter; and 2) whether furnishing copies of the transcript was a ministerial or discretionary duty.  In its Decision, the Virginia Court of Appeals held that it has original jurisdiction to issue writs of mandamus, prohibition, and habeas corpus in cases in which it would have appellate jurisdiction.  In civil matters, the Court of Appeals has appellate jurisdiction over “any final judgment, order, or decree of a circuit court in a civil matter” except as provided in subsection B of § 17.1-406.  Accordingly, in what appears to be a case of first impression, the Court of Appeals found that it does have jurisdiction to issue a writ of mandamus in this civil case.

As for the second issue, the Court of Appeals noted that “Mandamus is an extraordinary remedy that may be used to compel performance of a purely ministerial duty, but it does not lie to compel the performance of a discretionary duty.” A ministerial act, the Virginia Supreme Court has explained, is “one which a person performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise of, his own judgment upon the propriety of the act being done.” By contrast, “when the act to be performed involves the exercise of judgment or discretion on the part of the court judge, it becomes a judicial act and mandamus will not lie.”

Clerk Frey argued that the statutory language “[n]o person shall be permitted to use the clerk’s office for the purpose of making copies of records in such manner, or to such extent, as will, in the determination of the clerk, interfere with the business of the office or with its reasonable use by the general public” makes his duty discretionary.   The Court of Appeals rejected this assertion, pointing out that the Virginia Supreme Court held in 2001 that this section of the statute applied to the means by which the clerk allowed the petitioner to access the record but does not extend to a complete denial of the right to access the record.

Further, the Court of Appeals determined that mandamus does lie with the clerk because of the duties for circuit court clerks set out in Code § 17.1-208.  In particular, the Code states that “[r]equests for copies of nonconfidential court records maintained in individual case files shall be made to the clerk of the circuit court.” (emphasis added).  The court reasoned that this section of the Code delegates a duty to the clerk and “[i]n the context where a duty is delegated, the use of the term ‘shall’ means that the availability of discretion is absent.” Overall, the court found that mandamus is the appropriate remedy for the clerk since the non-discretionary responsibility lies solely with him under Code § 17.1-208.

The court resolved that mandamus did not apply to Judge Azcarate because the role of a judge is discretionary.  Rule 1:3 states in relevant part, “When a reporter takes down any proceeding in a court, any person interested is entitled to obtain a transcript of the proceedings or any part thereof upon terms and conditions to be fixed in each case by the judge.” From this language, the court found that the role of a judge is discretionary and therefore a writ of mandamus cannot compel a judge to provide consent to release copies of a trial transcript.

Therefore, Fletcher, Heald & Hildreth was able to open to the public the courthouse files to allow access to records and transcripts of court hearings and trials in Virginia.

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