Law Weekly Editors
v.
Andrew Allard, in his capacity as Editor-in-Chief
76 U.Va 21 (2024)
Per curiam.
Several cases against Chief Justice Allard have been consolidated on this appeal. He stands accused of embezzling from the Law Weekly coffers, both to enrich himself and pay off a porn star, abusing his staff in meetings, and inciting a mob to hang Executive Editor Coleman. All of this was done while Allard was Editor-in-Chief, sovereign of the Law Weekly. This suit was initiated by the staff of the Law Weekly to recover monetary damages against Allard.
The group of editors contends that Article II, Section 1 of the Law Weekly Constitution allows editors to sue the Editor-in-Chief for breach of their official duties and other mismanagement. The editors rely on this Court’s precedent, in which we have asserted our authority to rein in unruly EICs. See e.g., Ex parte Law Weekly, 76 U.Va 16 (2024).
Just last term, this Court addressed the core issue in this case—the ability of disgruntled editors to sue the Editor-in-Chief. See Gay Section H Law Weekly Staff v. Lake, 75 U.Va 16 (granting a Law School-wide injunction against confusing two editors because of the then-Editor-in-Chief’s mistake). In the months since, this Court has favorably cited that opinion no less than four times. See Students for Attending Cool Events v. UVA Law Faculty, 76 U.Va 13 (2024); Ex parte Law Weekly, 76 U.Va 16 (2024); Virginia v. Harvard Law Review Ass’n, 76 U.Va 6 (2023); Allard v. Editorial Board of the Virginia Law Weekly, 76 U.Va 12 (2023). Evidently, it is an important and well-regarded case.
But something more important has happened since Gay Section H Law Weekly Staff was decided: This Court’s composition has changed. The new Editor-in-Chief is also the new Chief Justice. And frankly, he doesn’t want to get sued by his underlings. We thus hold what any rational judge would hold. Gay Section H Law Weekly Staff was egregiously wrong on the day it was decided. It must be overturned. We now hold that the Editor-in-Chief, as sovereign of the Law Weekly, enjoys editorial immunity from suit. See Allard v. Editorial Board, 76 U.Va 12 (2023) (“Our sovereign, Chief Justice of this Court and Editor-in-Chief of our paper, lays original claim to all news, future and past.”) (Coleman, J., concurring). The cases brought against Mr. Allard are accordingly dismissed.
Allard, C.J., concurring.
I agree wholeheartedly with the Court, but I write separately to address questions left unanswered in its opinion, as I believe our precedent should not be overturned lightly. Firstly, the Court’s decision today is a narrow one. Our constitution has long emanated editorial immunity vibes. Indeed, the existence of editorial immunity has previously been recognized by Law Weekly editors. See Petrina Thomas, Hot Bench: Phil Tonseth ’22, Virginia Law Weekly (Feb. 23, 2022); Nikolai Morse, Hot Bench: Dana Lake ’23, Deposed Tyrant, Virginia Law Weekly (Mar. 15, 2023). And as we made clear in the Slaughter Hall Cases, Law Weekly articles that have nothing to do with the Court of Petty Appeals can still be cited as binding authority. Thus, in issuing today’s opinion, the Court has merely clarified existing law.
Further, our opinion does not disturb the central holding of Gay Section H Law Weekly Staff, namely, that Ethan Brown ’25 and Andrew Allard ’25 are distinct entities. Nothing in the per curiam opinion can rightly be characterized as overturning that core conclusion. Nor does our opinion do anything to affect the concurrence’s foundational observation that “There is nothing more vital to the exercise of justice than committing to the bit.” Gay Section H Law Weekly Staff, 75 U.Va 16 (Lake, C.J., concurring). This opinion thus does not threaten or cast doubt on the canon of uncomical avoidance.
Lastly, some may interpret today’s decision as an effort by the Chief Justice to immunize himself from future litigation and entrench his position as the paper’s Editor-in-Chief. This is essentially correct. But who is going to stop me? You?
Coleman, J., concurring.
Why did Caesar cross the Rubicon? Contrary to popular belief, it had nothing to do with a lust for dictatorial power. The Senators back in Rome demanded that he relinquish his control over Gaul and return to the capital fully exposed to vexatious litigation–a Hobson’s choice if ever there was one. Before humanity had a robust concept of executive immunity, transitions of power were fodder for civil war.
This lesson was lost on our Court when Section H Gays was decided. But now, I will rest easy knowing that Dana Lake ’23, Nikolai Morse ’24, or Andrew Allard ’25 will never storm this office with legions at their backs. This Court comes to the appropriate conclusion that their war crimes should never result in crushing civil liability.
Allen, J., dissenting in part and concurring in the judgment
The issue at hand is both complex and arcane, implicating some of the most basic tenets of our constitutional order. Because the Editor-in-Chief of the Law Weekly is undoubtedly a state actor by virtue of their immense power at this public institution, it must be considered whether they are properly shielded against this suit by sovereign immunity, and if not to what extent relief may flow to Petitioners.
Because the suit is not merely a pretext for a suit of the state itself, it is not automatically barred. However, to the extent Petitioners seek damages which would ultimately come from the coffers of the Commonwealth, I agree their suit is properly barred, as Ex Parte Young and its progeny make clear[1] that such suits may only seek prospective and equitable relief in the form of injunctions rather than any retrospective monetary damages.
I believe this Court unnecessarily reads Section H Gays as broadly as possible, going out of its way to overrule it. That case gave little analysis to the sovereign immunity questions at play, likely due to the author having just taken the bench. While the reading entertained by the Court today is not impossible, it is strained and unneeded—a pretense to agglomerate power in the hands of the Editor-in-Chief-Justice. Thus, I would retain Section H Gays’ operative holding, retaining the possibility of injunctive relief against an Editor-in-Chief, while clarifying that the sweeping language of Section H Gays should not be read as supporting relief in the form of damages.
Sandu, J., dissenting
The majority’s decision today directly undermines the very foundation of this Court. The ability to sue Editors-in-Chief is an inalienable right of the Law Weekly and the broader Law School community. It has always existed within this Court, for it is inconceivable that the drafters of the Law Weekly Constitution did not envision themselves being potential parties in a Court designed to resolve disputes within the Law School.
First, Petty Rule of Civil Procedure 1 states clearly that “We do what we want.” The Court’s present holding therefore impermissibly constrains the Court’s jurisdiction and prevents it from doing what it wants if it wants to sue the Editor-in-Chief. While my colleagues may argue that “do[ing] what we want'' includes overturning any rules which this Court has promulgated, a far better approach would be the arbitrary and capricious denial of suit on a case-by-case basis, depending on the will of the Court. The categorical rule promulgated in this case is far too broad.
Furthermore, members of this Court are permitted to rule on cases in which they themselves are parties. As a result, Editors-in-Chief who disagree with the suit being brought against them have every opportunity to convince the majority to rule in their own favor; they may even write the majority opinion. Therefore, cases where the Editor-in-Chief failed to avail themselves of such opportunities may be construed to have consented to this Court’s jurisdiction, making the problem of sovereign immunity a moot one. Again, if the Court truly can do whatever they want, then the Chief Justice may dismiss cases against them at will – but it must depend on what would be the funniest outcome for the individual case before the Court.
Most egregiously, however, the majority’s holding directly violates this Court’s Commitment to the Bit, as codified in PRCP 3. How can this Court ever hope to decide the funniest outcome possible in each case before it if all cases involving the Editor-in-Chief, of which there are many, are entirely barred? If anything, it is often far funnier for the Editor-in-Chief to lose in a Court where they themselves are the Chief Justice. The present Court has chosen a myopic approach to comedy, humorously overturning fundamental precedent for a single case rather than considering the impact it will have on future litigants. We are cutting off our nose to spite our face.
For the above reasons, and to make known the opinions of the outgoing 3L members of this Court, I must respectfully dissent.
Morse, C.J. Emeritus, dissenting.
The consequences of today’s decision are as astonishing as its reasoning is dull. As my colleague J. Sandu correctly points out, the so-called “majority” opinion conveniently ignores our precedent, the Law Weekly Constitution, and most damning of all, the Petty Rules of Civil Procedure. I write separately, however, to criticize the majority’s use of the term, “sovereign.”
Chief Justice Allard, clearly having attended at least one Constitutional Law class (or, more likely, having at least one friend who has granted him access to their Quimbee subscription) flings what he seems to believe is quite the gauntlet: he claims that he is the “sovereign” of Law Weekly, and therefore entitled to “editorial immunity.” At this point, dear reader, please join me in a facepalm. Literally do that. Smack your open palm against your forehead with medium force. Maybe twice. Feeling a little better? Me neither.
It seems to me there are two possibilities. First, the Chief Justice might actually understand what a “sovereign” is, and intends to subvert both the Law Weekly Constitution, doing away with popular sovereignty which is the foundation of American democratic constitutionalism. Under this reading, the Chief Justice seems to be anointing himself as some sort of monarch. But given his lack of arms or resources (surely a monarch should be able to afford to print a newspaper each week), this seems unlikely.
The second, and more likely reading of the “majority” opinion, is that the Chief Justice heard someone use the word “sovereign” in passing, and thought to throw it in as simply another ingredient in his “everything but the kitchen sink” approach to judging. So, let’s help the Chief out. A sovereign is not a job title, like lifeguard, proctologist, or Editor-in-Chief. Rather, it is the entity which possesses “supreme political authority; paramount control of the constitution and frame of government and Its administration ; the self-sufficient source of political power, from which all specific political powers are derived.”[2] While there is a colorable argument that the Law Weekly is a sovereign, the Chief can no more lay claim to sovereign status than can Darden students can credibly claim to have worked hard and learned a lot.
I dissent.
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