Baugh v. Judicial Inquiry and Review Com'n (JIRC), No. 89-2965
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
| Writing for the Court | Before WIDENER and WILKINS; WILKINS |
| Citation | 907 F.2d 440 |
| 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. |
| Docket Number | No. 89-2965 |
| Decision Date | 02 July 1990 |
Page 440
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.
Fourth Circuit.
Decided July 2, 1990.
Page 441
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
Page 442
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...
To continue reading
Request your trial
-
Lind v. Grimmer, Civ. No. 92-00415 ACK.
...Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535 (1978), the Fourth Circuit's decision in Baugh v. Judicial Inquiry and Review Commission, 907 F.2d 440 (4th Cir.1990), the Federal District Court of Rhode Island's decision in Providence Journal Co. v. Newton, 723 F.Supp. 846 (D.R.I.1989), and t......
-
American Civil Liberties Union v. Holder, Civil Action No. 1:09-cv-042.
...... by which the constitutional question can be avoided"). Plaintiffs urge the Court to follow Baugh v. Judicial Inquiry & Review Comm'n, 907 F.2d 440 (4th Cir.1990), and find that the FCA seal provisions are a content-based restriction on speech. Baugh is distinguishable because it involve......
-
McBryde v. Committee to Rev. Cir. Council Conduct, No. CIV.A.98-2457 CKK.
...portion of the statute to apply only to participants in Commission proceedings. See Baugh et al. v. Judicial Inquiry & Rev. Com'n, 907 F.2d 440, 443 (4th Cir.1990). In a later case, attorneys who had filed complaints about state judges with the Commission challenged the constitutionality of......
-
In re Warner, No. 2005-B-1303.
...the tenants of the First Amendment as applied to a third party to the proceedings), and Baugh v. Judicial Inquiry and Review Comm'n, 907 F.2d 440 (4th Cir.1990) (finding the confidentiality provision governing proceedings before the judicial discipline commission was not a valid time, place......
-
Lind v. Grimmer, Civ. No. 92-00415 ACK.
...Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535 (1978), the Fourth Circuit's decision in Baugh v. Judicial Inquiry and Review Commission, 907 F.2d 440 (4th Cir.1990), the Federal District Court of Rhode Island's decision in Providence Journal Co. v. Newton, 723 F.Supp. 846 (D.R.I.1989), and t......
-
American Civil Liberties Union v. Holder, Civil Action No. 1:09-cv-042.
...... by which the constitutional question can be avoided"). Plaintiffs urge the Court to follow Baugh v. Judicial Inquiry & Review Comm'n, 907 F.2d 440 (4th Cir.1990), and find that the FCA seal provisions are a content-based restriction on speech. Baugh is distinguishable because it involve......
-
McBryde v. Committee to Rev. Cir. Council Conduct, No. CIV.A.98-2457 CKK.
...portion of the statute to apply only to participants in Commission proceedings. See Baugh et al. v. Judicial Inquiry & Rev. Com'n, 907 F.2d 440, 443 (4th Cir.1990). In a later case, attorneys who had filed complaints about state judges with the Commission challenged the constitutionality of......
-
In re Warner, No. 2005-B-1303.
...the tenants of the First Amendment as applied to a third party to the proceedings), and Baugh v. Judicial Inquiry and Review Comm'n, 907 F.2d 440 (4th Cir.1990) (finding the confidentiality provision governing proceedings before the judicial discipline commission was not a valid time, place......