Baugh v. Judicial Inquiry and Review Com'n (JIRC)

Decision Date02 July 1990
Docket NumberNo. 89-2965,89-2965
Parties, 17 Media L. Rep. 2092 David P. BAUGH; Dane Hess vonBreichenruchart, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. JUDICIAL INQUIRY AND REVIEW COMMISSION, ("JIRC"), Commonwealth of Virginia; Reno S. Harp, III, Counsel, Judicial Inquiry and Review Commission, in his official capacity; David T. Petty, Jr., Chair, Judicial Inquiry and Review Commission, in his official capacity; William Shore Robertson, Vice Chair, Judicial Inquiry and Review Commission, in his official capacity; Stuart Shumate, Member, Judicial Inquiry and Review Commission, in his official capacity; B.M. Millner, Member, Judicial Inquiry and Review Commission, in his official capacity; E. Preston Grissom, Member, Judicial Inquiry and Review Commission, in his official capacity; Phyllis E. Galanti, Member, Judicial Inquiry and Review Commission, in her official capacity; Frederick H. Combs, Member, Judicial Inquiry and Review Commission, in his official capacity, Defendants-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Rodney Alan Smolla (argued), Marshall-Wythe School of Law, College of William & Mary, Williamsburg, Va. (Gerald T. Zerkin, Karen L. Ely-Pierce, Frank M. Feibelman, Gerald T. Zerkin & Associates, Richmond, Va., on brief), for plaintiffs-appellants.

William Gray Broaddus, McGuire, Woods, Battle & Boothe, Richmond, Va. (Grace R. den Hartog, Scott C. Oostdyk, on brief), for defendants-appellees.

Before WIDENER and WILKINS, Circuit Judges, and KELLAM, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

WILKINS, Circuit Judge:

David P. Baugh and Dane Hess vonBreichenruchart appeal the order of the district court dismissing their complaint against the Judicial Inquiry and Review Commission (Commission), its counsel in his official capacity, and the seven individual Commission members in their official capacities. Baugh and vonBreichenruchart allege that Virginia Code section 2.1-37.13 (1987) violates their constitutional rights of free speech and to petition the government. We reverse and remand to the district court with instructions to reinstate the complaint.

I.

A new Virginia Constitution adopted in 1971 required the Virginia General Assembly to create a Judicial Inquiry and Review Commission "with the power to investigate charges which would be the basis for retirement, censure, or removal of a judge." Va. Const. art. VI, Sec. 10. Section 10 also provides that "[p]roceedings before the Commission shall be confidential." Id. Pursuant to this mandate, the Virginia General Assembly created the Commission in 1971.

Section 2.1-37.13 requires confidentiality of papers filed with and proceedings before the Commission and provides in part:

All papers filed with and proceedings before the Commission, ... including the identification of the subject judge as well as all testimony and other evidence and any transcript thereof made by a reporter, shall be confidential and shall not be divulged, other than to the Commission, by any person who either files a complaint with the Commission, or receives such complaint in an official capacity, or investigates such complaint, is interviewed concerning such complaint by a member, employee or agent of the Commission, or participates in any proceeding of the Commission, or the official recording or transcription thereof, except that the record of any proceeding filed with the Supreme Court shall lose its confidential character.

Va.Code Sec. 2.1-37.13. Divulging information in violation of this section is a misdemeanor. Id.

Baugh, an attorney licensed to practice in Virginia, filed a complaint with the Commission concerning an incident that occurred while he was representing a client before a state judge. vonBreichenruchart filed her complaint as a result of an incident that occurred during a state court proceeding to which she was a party. Since neither record has been filed with the Virginia Supreme Court, section 2.1-37.13 states that the contents of the complaints filed with the Commission must remain confidential, as well as the fact that complaints have been filed. And Baugh and vonBreichenruchart each received a letter from the Commission warning that disclosure of any information concerning their complaint against a judge could result in criminal prosecution.

Baugh and vonBreichenruchart subsequently filed this action against the Commission seeking injunctive relief and a declaratory judgment that section 2.1-37.13 of the Virginia Code is unconstitutional because it violates their right to free speech and their right to petition the government under the first and fourteenth amendments to the United States Constitution and Article I, section 12, of the Virginia Constitution.

Granting the Commission's motion to dismiss, the district court held that section 2.1-37.13 "is a content-neutral effort to promote substantial government interests while leaving open alternative channels of communication" and that it is a "valid time, place and manner regulation." In holding that this section is content-neutral, the district court reasoned:

[T]he statute bans all speech regarding the Commission's proceedings.... To the extent that plaintiffs' comments would be directed at the [Commission] rather than at the judge, for example charging the Commission with failure to investigate complaints thoroughly, the statute similarly bans speech by defenders and critics alike, and does so not to muffle criticism but to encourage complainants and witnesses to speak fully and truthfully.

The district court found that the statute left open alternative means of communication because a person who files a complaint is "free to disclose the name of the judge and the events that led them to file the complaint, but merely cannot say that they filed a complaint or what action the [Commission] took on the complaint." The district court also held that the "incidental restriction on speech does not impermissibly burden the plaintiffs' right to petition the government."

II.

This appeal presents the very narrow issue of whether Virginia may punish a person who files a complaint with the Commission for disclosing the fact that a complaint has been filed and for disclosing the action or non-action taken by the Commission. 1 It is clear that Virginia could not, consistent with the first amendment, punish a person for publicly criticizing a judge or the Commission and the district court correctly found that this statute does not prohibit this conduct. However, the statute does prevent a complainant from coupling these criticisms with the factual statement that a complaint has been filed and the action, if any, taken by the Commission.

Section 2.1-37.13 originally provided that confidential information could not be divulged by "any person to anyone except the Commission." However, the constitutionality of this section was assailed in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), a case involving the conviction of a newspaper for divulging information in violation of section 2.1-37.13. The newspaper had accurately reported about a pending inquiry before the Commission and identified the judge who was the subject of the investigation. The Supreme Court reviewed section 2.1-37.13 to determine "whether the First Amendment permits the criminal punishment of third persons who are strangers to the inquiry, including the news media, for divulging or publishing truthful information regarding confidential proceedings of the Judicial Inquiry and Review Commission." Id. at 837, 98 S.Ct. at 1540. The Court reversed the conviction, concluding that "the publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth's interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom." Id. at 838, 98 S.Ct. at 1541. After this decision the Virginia General Assembly amended section 2.1-37.13 to limit the confidentiality restrictions to participants in Commission proceedings. 2

Since the constitutionality of the original version of section 2.1-37.13 was addressed in Landmark Communications, the Supreme Court has held that "[g]overnment regulation of expressive activity is content-neutral so long as it is 'justified without reference to the content of the regulated speech.' " Ward v. Rock Against Racism, --- U.S. ----, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989) (emphasis in Ward ) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068, 82 L.Ed.2d 221 (1984)). "The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Id.

The Commission maintains that section 2.1-37.13 is content-neutral because it does not bar criticism of judges and applies equally to a judge's supporters and critics. The Commission's argument, however, misconstrues the thrust of content-neutrality analysis and confuses that analysis...

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