First Amend. Coalition v. JUD. INQUIRY & REV. BD.

• Decision Date: 22 February 1984
• Docket Number: Civ. A. No. 83-0579.
• Parties: The FIRST AMENDMENT COALITION, Frederick J. Huysman and Daniel R. Biddle v. JUDICIAL INQUIRY AND REVIEW BOARD.
• Court: U.S. District Court — Eastern District of Pennsylvania

579 F. Supp. 192

The FIRST AMENDMENT COALITION, Frederick J. Huysman and Daniel R. Biddle v. JUDICIAL INQUIRY AND REVIEW BOARD.

Civ. A. No. 83-0579.

United States District Court, E.D. Pennsylvania.

February 1, 1984.

As Amended February 22, 1984.

COPYRIGHT MATERIAL OMITTED

Samuel E. Klein, Philadelphia, Pa., for plaintiffs.

Perry S. Bechtle, Philadelphia, Pa., for defendant.

OPINION

LOUIS H. POLLAK, District Judge.

This litigation presents challenges, based on the First and Fourteenth Amendments of the Constitution, to certain requirements of confidentiality which govern proceedings of the defendant, the Judicial Inquiry and Review Board of Pennsylvania — requirements mandated by the Constitution of Pennsylvania.

I. The Background of This Litigation

In 1968, as part of a general overhaul of the Pennsylvania Constitution, article V — the judiciary article — was extensively revised. Section 18 of the revised article V provided for the creation of a new constitutional entity, the Judicial Inquiry and Review Board. Pursuant to implementing legislation, the Board was established and its nine members appointed — five judges by the Pennsylvania Supreme Court, and four lawyers and laypersons by the Governor — in 1969.

The constitutional mandate of the Board is to receive and inquire into complaints of misfeasance by Pennsylvania state judges and, in any instance in which the Board finds a judge guilty of some significant misconduct, to recommend to the Pennsylvania Supreme Court the judge's "suspension, removal, discipline or compulsory retirement."¹ The Pennsylvania Supreme Court is given authority by article V to "review the record of the board's proceedings on the law and facts," to "permit the introduction of additional evidence," and to "order suspension, removal, discipline or compulsory retirement, or to wholly reject the recommendation, as it finds just and proper."² Article V directs that "all papers filed with and proceedings before the board shall be confidential but upon being filed by the board in the Supreme Court, the record shall lose its confidential character."³ Article V also recites that the joint authority of the Board and the Supreme Court to deal with judicial misfeasance "is in addition to and not in substitution for the provisions for impeachment for misbehavior in office contained in article six"⁴ — the article of the Pennsylvania Constitution which preserves the time-honored authority of the legislature to remove not only judges but also executive and legislative officials who betray their public trust.

From its establishment in 1969 up to June 1, 1983, the Judicial Inquiry and Review Board has received 3040 complaints — the annual filings rising from 44 in 1969 and 67 in 1970 to 168 in the first five months of 1983.⁵ The initial burden of processing these filings has fallen on Richard E. McDevitt, Esq., Executive Director of the Board, and his modest staff.⁶ Mr. McDevitt dismisses a large proportion of the complaints outright either because they entirely fail to allege facts constituting misconduct or because they challenge rulings which were made by judges in the course of litigation and which are, therefore, subject to judicial oversight by appellate courts.⁷

Complaints which are not manifestly frivolous or outside the Board's jurisdiction are investigated informally by a staff lawyer or investigator or, on occasion, by a Board member. Frequently that informal investigation leads Mr. McDevitt to conclude that the complaint is groundless and may be dismissed without any necessity of notifying the judge that a complaint has been filed; whereupon Mr. McDevitt so recommends to the Board. If the informal investigation fails to resolve the matter, the judge is advised of the pending complaint and invited to comment. The judge's response may lead Mr. McDevitt, and then the Board, to conclude that dismissal of the complaint is proper. On occasion, the judge's response may lead Mr. McDevitt and the Board to the conclusion that, while formal sanctions are not called for, dismissal of the complaint should be accompanied by some expression of Board disapproval of the challenged conduct. Usually, the Board's disapproval is communicated to the judge in a letter of admonition which the judge signs and returns;⁸ less often, the judge is summoned to a conference with a Board member — generally the Chairman — and Mr. McDevitt.⁹

Very occasionally, the Board's informal investigation and the judge's comments are insufficient to ground a Board determination either to dismiss the charges or, in the alternative, to proceed to the phase of formal accusation. In those rare instances the Board can, pursuant to a 1975 enlargement of its investigative powers, conduct a formal investigative hearing at which the attendance of witnesses and the production of documents can be compelled.¹⁰

If the Board's investigation — whether formal or informal — does not result in dismissal of a complaint, the Board prepares and transmits to the judge formal charges of misconduct. The Board then schedules an adversary hearing conducted by three or more Board members.¹¹ The accused judge is entitled to be represented by counsel. The Board's charges are not presented by Mr. McDevitt or one of his staff but by specially retained counsel.¹²

Out of the 3040 complaints filed with the Board in its fourteen-year history, only eighty-four — not quite three percent — have resulted in a Board decision to prefer formal charges.¹³ Five of these eighty-four proceedings were, as of June 1, 1983, still pending. Of the seventy-nine completed proceedings, seventeen were terminated without a hearing — mooted by the judge's death, or by the expiration of the judge's term, or, most frequently, by the judge's resignation.¹⁴ The Board has held hearings in sixty-two cases. But of these sixty-two cases, only fifty-three have been decided by the Board on the merits; nine of the sixty-two were mooted, prior to Board disposition, by resignation, retirement, or expiration of the judge's term.

Of the fifty-three cases decided on the merits up to June 1, 1983, forty-one were cases in which the Board found misconduct and filed a transcript of the Board proceedings, together with the Board's recommendation for sanctions, in the Supreme Court. By virtue of article V, section 18(h), of the Pennsylvania Constitution, the filing of the Board transcript and recommendations opened them to public view. In four of those forty-one cases, the Supreme Court rejected the Board's conclusions and dismissed the charges.

Of the twelve other cases decided by the Board on the merits, five were dismissals which the Board filed in the Supreme Court, thereby making the records public;¹⁵ six were dismissals the Board did not file in the Supreme Court;¹⁶ and the last was the case which gave rise to this litigation.

II. The Litigation Before This Court

The case which gave rise to this litigation was initiated by a complaint against a sitting judge filed with the Board in 1980. In 1981 the Board commenced a formal investigation which resulted in a decision to prefer formal charges. In the late spring of 1982, a hearing panel of the Board began to hear testimony on the charges.

On May 25, 1982, Daniel R. Biddle — a reporter for The Philadelphia Inquirer and one of the two individual plaintiffs in this lawsuit — was served with a Board subpoena requiring his appearance as a witness at the hearing. Two days later, on May 27, 1982, a similar subpoena was served on a reporter for The Pittsburgh Post-Gazette, Frederick J. Huysman, the other individual plaintiff in this lawsuit. The subpoenas advised Messrs. Biddle and Huysman that "by direction of the Constitution of Pennsylvania these proceedings are confidential and any disclosures outside the proceedings shall constitute contempt and be actionable." On May 28, 1982, at the meeting of the hearing panel to which Mr. Biddle had been summoned, Samuel E. Klein, Esq., Mr. Biddle's counsel, sought to clarify the confidentiality requirements embodied in the subpoena. Judge Charles Mirarchi, as Chairman of the hearing panel, acquiesced in the accuracy of Mr. Klein's formulation of what he understood to be the Board's position — namely, "that Mr. Biddle is precluded from disclosing in any way his own testimony or appearance before this Board."¹⁷ After the Board denied Mr. Biddle's motion to quash the subpoena and the Pennsylvania Supreme Court denied an expedited hearing of an appeal filed by Mr. Biddle from the Board's denial of the motion to quash,¹⁸ Mr. Biddle testified before the Board, as did Mr. Huysman.

The Board's proceedings continued on through 1982 and into 1983.

On February 3, 1983, the present lawsuit was initiated in this court by Messrs. Biddle and Huysman and by the First Amendment Coalition — a Pennsylvania non-profit corporation comprised of some seventy newspapers,¹⁹ associations of journalists and publishers, and television stations. The complaint alleged that the defendant Board had preferred formal charges against a sitting judge and was holding hearings on those charges. The complaint further alleged that the hearings were being conducted behind closed doors, pursuant to article V, section 18(h) of the Pennsylvania Constitution, and that plaintiffs Biddle and Huysman had been subpoenaed as witnesses and enjoined to maintain silence under penalty of contempt. The complaint also recited that:

A record is filed with the Supreme Court, and the seal of confidentiality is lifted, only if the Board makes a recommendation to the Supreme Court for the imposition of discipline.

The complaint further stated that the subject of the charges pending before the Board was Honorable Rolf Larsen, an Associate Justice of the Pennsylvania Supreme Court. The complaint sought (1) a declaration that article V, section 18(h), of the Pennsylvania Constitution, and its implementing statute and rules, are incompatible with the ...