784 F.2d 467 (3rd Cir. 1986), 84-1153, First Amendment Coalition v. Judicial Inquiry and Review Bd.

Docket Nº:JUDICIAL INQUIRY AND REVIEW BOARD, Appellant in 84-1153.
Citation:784 F.2d 467
Party Name:The FIRST AMENDMENT COALITION, Frederick J. Huysman and Daniel R. Biddle, Appellants in 84-1164, v.
Case Date:February 14, 1986
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 467

784 F.2d 467 (3rd Cir. 1986)

The FIRST AMENDMENT COALITION, Frederick J. Huysman and

Daniel R. Biddle, Appellants in 84-1164,



Nos. 84-1153, 84-1164.

United States Court of Appeals, Third Circuit

February 14, 1986

Argued Jan. 14, 1985.

Reargued In Banc Nov. 12, 1985.

As Amended Feb. 27, 1986.

Page 468

Samuel E. Klein (argued), Katherine Hatton, Kohn, Savett, Marion & Graf, P.C., Philadelphia, Pa., for First Amendment Coalition, Frederick J. Huysman, and Daniel R. Biddle.

Perry S. Bechtle (argued), Conrad O. Kattner, LaBrum & Doak, Philadelphia, Pa., for Judicial Inquiry and Review Bd.

Argued Jan. 14, 1985

Before ADAMS, WEIS and HARRIS, [*] JJ.

Reargued In Banc Nov. 12, 1985



WEIS, Circuit Judge.

The Pennsylvania Constitution provides that public access to records of the Judicial Inquiry and Review Board is allowed only if it recommends that the state supreme court impose discipline on a judge or member of the minor judiciary. The district court found that the federal constitution requires public disclosure by the Board in every instance in which it conducts a formal hearing even if no disciplinary action is recommended. We conclude that the Pennsylvania provision does not violate the federal constitution. In addition, we find that the Board's order banning witnesses from disclosing their own testimony is overbroad. Accordingly, the district court's order will be vacated and the case remanded for the entry of a new decree.

Plaintiffs are Frederick Huysman, a reporter for the Pittsburgh Post-Gazette; Daniel Biddle, a reporter for the Philadelphia Inquirer; and the First Amendment Coalition, a nonprofit corporation comprising newspapers, broadcasters, and media organizations. Defendant is the Pennsylvania Judicial Inquiry and Review Board which receives, investigates, and processes complaints of misconduct against members of the state judiciary.

Plaintiffs commenced the action in February 1983 seeking to obtain access to Board proceedings. They alleged that the Board was conducting private hearings on charges of misconduct which it had lodged

Page 469

against Associate Justice Larsen of the Pennsylvania Supreme Court after receiving a complaint and conducting a formal investigation. In accordance with state constitutional and statutory provisions, as well as the Board's procedural rules, the public was denied access to the proceedings. During the hearings, plaintiffs Huysman and Biddle, who had been subpoenaed as witnesses, were prohibited "from disclosing in any way their own testimony or appearance before the Board." Plaintiffs contended that the state's confidentiality provision should be declared in violation of the First and Fourteenth Amendments of the United States Constitution.

Within a week after the suit was filed, the Philadelphia Inquirer, one of the Coalition members, stated in an editorial that it had obtained a full transcript of the proceedings before the Board and began to publish purported verbatim excerpts. At about the same time, the Board dismissed the charges against Justice Larsen without recommending discipline.

The Board's prior practice had been to file a transcript of formal proceedings with the state supreme court in some cases in which the charges were dismissed, as well as in all those in which discipline had been proposed. After receiving an opinion from counsel, however, the Board determined that under the state constitution the record was to be sent to the court, and thus made public, only in those cases where discipline was recommended. Consequently, the Larsen record remained sealed.

The First Amendment Coalition then filed a petition for mandamus with the state supreme court asking that it compel the Board to file the record with the court. The petition was denied, the court stating that it was prohibited from granting the request because the Board had not suggested suspension, removal, discipline or retirement. In the absence of a recommendation by the Board there was "no constitutional authority for [the] court to review the record and act. The matter is constitutionally closed." First Amendment Coalition v. Judicial Inquiry and Review Bd., 501 Pa. 129, 133, 460 A.2d 722, 724 (1983).

Following these developments, the district court received evidence on the history and practices of the Board. No material issues of fact were in dispute, and the plaintiffs' motion for summary judgment was granted. Preliminarily, the court rejected the Board's contention that the case was mooted by the Inquirer's publication of the Larsen transcripts. Observing that the Inquirer had "not shared its riches" with fellow members of the Coalition, the court found that the matter still presented a live dispute as to them. Moreover, the claims fell into the category of those capable of repetition yet evading review.

After surveying decisional law on the First Amendment and a right of access, the district court concluded that "a restriction on public and press access can be sustained, but only to the extent that it demonstrably advances significant governmental interests." First Amendment Coalition v. Judicial Inquiry and Review Bd., 579 F.Supp. 192, 211 (E.D.Pa.1984). Noting that only a fraction of the Board's investigations result in formal charges, 1 the court found a substantial state interest "in protecting accused judges, and the judiciary itself, from the public hearing of charges, most of which will evaporate." Id. at 214. Consequently, the Coalition's "insistence on access to all charges other than those which are 'obviously unfounded or frivolous' is not persuasive." Id.

However, in instances where the Board has preferred formal charges, the court concluded that denial of access impairs the public's opportunity to appraise the work of the Board, the standards of judicial conduct it applies, and the consistency of enforcement.

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Acknowledging the "trauma of public accusation," one which is "greater for an official who, due to the special constraints of the bench, is largely disabled from seeking public support," the court found a "tension between the identified public interest and the identified cost." Id. at 215. "The way of maximizing these twin interests is to permit access to all cases in which the Board prefers formal charges--but to defer the time of access until the Board's filing with the Supreme Court of a transcript which fully records the Board's proceedings." Id. As a result, the state constitutional requirement was modified by the district court's directive that the Board make public, on disposition, the record of all proceedings in which it had filed formal charges.

In discussing the contentions of the individual plaintiffs, the district court recognized a valid state interest in insisting on witness secrecy. Id. at 217. Accordingly, the court declared that the Board may "impose confidentiality upon any witness who appears and testifies ... concerning the fact of the witness' appearance and the substance of any testimony until such time as the record of the Board's proceedings are made available to the public."

All parties have appealed. Plaintiffs contend that the court erred in allowing access only to a transcript at the completion of formal proceedings and that the restrictions on nonparty witnesses violate the constitutional guarantee of free speech. The Board argues that the confidentiality requirement is appropriate to the Board's role, has only slight impact on news-gathering, and is consistent with federal constitutional standards.


In response to the need for modernization of its constitution, Pennsylvania called a convention in 1968. Although a number of changes in the organization of state government were proposed, the principal item presented to the delegates was the preparation of a new judiciary article. The convention ultimately submitted a proposal, designated Article V of the state constitution, governing the selection, retention, and tenure of judicial officers.

One of the convention's most valuable contributions to that Article was the establishment of a Judicial Inquiry and Review Board, a constitutionally independent body to oversee the conduct of the state's judiciary. The essential elements of that proposal had been recommended to the Convention's Preparatory Committee in 1967 by the Pennsylvania Bar Association. That presentation expressed dissatisfaction with the cumbersome method of impeachment as the sole procedure for grappling with the problems of the aged, infirm, irascible, or, in rare instances, corrupt judge. The Bar advocated a new method of solving these problems, including measures short of removal from office.

Favorable comments were received on the operation of the California Commission on Judicial Qualifications, which had been established some years earlier. Speaking on behalf of the state bar association, Bernard G. Segal, Esquire, devoted special attention to the fact that a number of California judges had voluntarily resigned or retired while under investigation by the Commission. He also remarked that under California practice when a complaint is filed with the Commission, its "investigations, deliberations, and conclusions on the case are completely secret, except, of course, if the Commission's decision is appealed to the Supreme Court." Statement of Bernard G. Segal on the Proposed Judiciary Article before the Preparatory Committee for the Pennsylvania Constitutional Convention.

Dean Laub of the Dickinson School of Law, a former judge, wrote an article listing the arguments for and against the features of the various plans proposed. He referred to the California plan noting, under that state's...

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