IN RE PET. TO INSPECT GRAND JURY MATERIALS, No. 81-1-GJ (MIA)-EAG.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
• Citation: 576 F. Supp. 1275
• Decision Date: 20 December 1983
• Docket Number: No. 81-1-GJ (MIA)-EAG.
• Parties: In re PETITION TO INSPECT AND COPY GRAND JURY MATERIALS.

576 F. Supp. 1275

In re PETITION TO INSPECT AND COPY GRAND JURY MATERIALS.

No. 81-1-GJ (MIA)-EAG.

United States District Court, S.D. Florida.

December 20, 1983.

576 F. Supp. 1276

John Doar, New York City, G. Stewart Webb, Jr., Baltimore, Md., for Committee.

Robert I. Richter, Public Integrity Section, Criminal Div., U.S. Dept. of Justice, Washington, D.C., for Government.

Terence J. Anderson, University of Miami School of Law, Coral Gables, Fla., for Honorable Alcee L. Hastings.

Thomas Julin, Miami, Fla., for The Miami Herald Publishing Co.

MEMORANDUM OPINION

GORDON, Senior District Judge.^*

I.

THE ISSUE FOR DECISION

The motion before the Court raises a narrow issue: Whether a Special Investigating Committee appointed under the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C. § 372(c), ("the Act")¹ can gain access to

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the records and evidence before a grand jury, now discharged, that returned an indictment against an Article III Judge

A. The Act

The Act outlines a procedure for the review and resolution of complaints alleging that a judge or magistrate "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts."² Under subsection (c)(3) of the Act, the Chief Judge of the Circuit is required "expeditiously" to review the complaint. In specified circumstances he may dismiss the complaint or "conclude the proceeding."³ If the Chief Judge determines that such action is not appropriate, subsection (c)(4)(A) requires the Chief Judge to "appoint himself and equal numbers of circuit and district judges of the circuit to a special committee to investigate the facts and allegations contained in the complaint."⁴ Following such investigation, the Special Committee is required to file a report with the judicial council of the circuit containing its findings and recommendations.⁵ Upon receipt of this report, the council, which is authorized to conduct an additional investigation, is directed to take such action "as is appropriate to assure the effective and expeditious administration of the business of the courts within the circuit, including, but not limited to," actions specifically enumerated in the Act.⁶ The remainder of the Act covers various procedural details.⁷

B. The Complaint and the Special Committee Petition

On March 17, 1983, a verified written complaint was filed with the Clerk of the United States Court of Appeals for the Eleventh Judicial Circuit pursuant to the Act. The complaint alleged that United States District Judge Alcee L. Hastings had engaged in conduct proscribed by the Act.

On March 29, 1983 the Chief Judge of the United States Court of Appeals for the Eleventh Circuit issued an order pursuant to subsection (c)(4), appointing a Special Committee to investigate the March 17 complaint. Subsection (c)(5) of the Act requires this Committee to "conduct an investigation of the facts and allegations contained in the complaint as extensive as it considers necessary."⁸ In the performance of this statutory duty, the Committee has petitioned this Court⁹ for leave to examine the records, transcripts, minutes, and exhibits of the grand jury that had previously indicted Judge Hastings.¹⁰ The petition is opposed by Judge Hastings¹¹ who, through counsel, has filed a motion seeking to have the petition dismissed, or in the alternative to have the grand jury material

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disclosed to the public if the motion to dismiss is denied and disclosure to the Committee is allowed.¹²

C. Contentions

1. Opposition to the petition is first premised upon the argument that the Act prohibits the Special Committee from applying to this Court to obtain access to the grand jury materials. The Court finds no authority either in the Act or in its legislative history supporting this contention.

The Act evidences Congress' intent to create, within the existing judicial-administrative framework,¹³ a procedure to deal fairly, authoritatively, and efficiently with complaints of misconduct or disability made against judges and magistrates. This system, approved in principle by the judiciary,¹⁴ serves to effectuate the public interest in ensuring and preserving an able, honorable, accountable, and independent judiciary. The goals of the Act were to "improve judicial accountability and ethics, to promote respect for the principle that the appearance of justice is an integral element of this country's justice system, and at the same time, to maintain the independence and autonomy of the judicial branch of government." H.R.Rep. No. 1313, 96th Cong., 2nd Sess. 1 (1980). A review of the legislative history reveals that the focal point of Congressional concern centered on the perceived need for a fair, effective, and efficient way to ensure accountability of powerful life-tenured federal judges to supplement the slow and cumbersome impeachment process.¹⁵ Little guidance can be found on the narrow procedural question before this Court.¹⁶

Nevertheless, the scant legislative history touching this area suggests that Congress did not intend to restrict the investigatory methods a Special Committee might pursue. Subsection (c)(5) of the Act imposes

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a duty upon the Committee to "conduct an investigation as extensive as it considers necessary."¹⁷ Congress assigned and entrusted the duty and responsibility to committees of Federal Judges and intentionally gave them the wide latitude to investigate without limitation as they "consider necessary." Consistent with the desire to avoid an adversarial-disciplinary procedure, an "inquisitorial-administrative" approach was suggested and adopted for the conduct of such investigation, rather than an adversarial-trial concept. H.R.Rep. No. 1313, supra at 14. Subsection (c)(5) was therefore seen to "provide the special committee with broad flexibility and general authority to investigate the facts and allegations contained in the complaint." Id. at 11. Thus, it is for the Committee to "control the objectives and nature of the inquiry." Id. at 14

This Court recognizes the power and right of a Special Committee to petition for access to grand jury material. A contrary construction of the Act would be wholly inconsistent with its broad purposes — to preserve the integrity of the judiciary, to maintain public confidence in the judicial process, to protect the wrongfully accused, and to strengthen judicial independence. These goals are better served by a careful evaluation of the need asserted in the petition, rather than denying the authority of the Committee to initiate the petition in the first instance.¹⁸

2. Judge Hastings has also challenged the power of this Court to hear and decide this petition. It is concluded that this Court has jurisdiction to hear a petition seeking access to the records of a discharged grand jury convened in its district. As a general rule, "requests for disclosure of grand jury transcripts should be directed to the court that supervised the grand jury's activities." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 226, 99 S.Ct. 1667, 1676, 60 L.Ed.2d 156 (1979). See also Fed.R.Crim.P. 6(e)(3)(D). Not only is this Court the only Court with authority and control over the grand jury records, but it also has the responsibility for maintaining the secrecy of the grand jury proceedings. Thus, the Committee, though an arm of the judiciary, had no choice but to petition this Court for access. Douglas Oil, supra at 225, 99 S.Ct. at 1676.

Subsection (c)(10) of the Act¹⁹ does not prevent this Court from entertaining the petition. That section, properly read, prohibits only judicial review of the Special Committee's findings and recommendation. The Act does not foreclose all resort to the judicial power during the investigatory stage of a Special Committee's duty. Under subsection (c)(9)(A), the Special Committee has the authority to exercise the subpoena power. If, during its investigation, a witness should refuse to obey the command of the subpoena, the Committee certainly would have the authority to invoke the jurisdiction of the appropriate court to seek enforcement of the subpoena. In reaching a decision on enforcement, the Court does not run afoul of subsection (c)(10). In a similar fashion, the Committee can attempt to supplement its investigatory efforts by petitioning for access to grand

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jury material, without requiring this Court to conduct the review prohibited by subsection (c)(10)

Finally, the argument is made that under 28 U.S.C. § 455(a)²⁰ all Article III judges are disqualified from hearing this petition. To hold that all Article III judges are disqualified to hear the petition would severely limit the work of the Committee and is contrary to the obvious intent of Congress. The public interest in a fair and correct resolution of this crucial matter requires this Court to accept its responsibility "to say what the law is," albeit for the first time. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). Therefore, this Court finds that the Rule of Necessity requires that this forum be and remain open and available for a ruling on the petition. See United States v. Will, 449 U.S. 200, 217, 101 S.Ct. 471, 481, 66 L.Ed.2d 392 (1980); Du Plantier v. United States, 606 F.2d 654, 662 (5th Cir.1979), cert. denied, 449 U.S. 1076, 101 S.Ct. 854, 66 L.Ed.2d 798 (1981); Atkins v. United States, 556 F.2d 1028, 1035-40, 214 Ct.Cl. 186 (1977), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978).

II.

RULE 6(e) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE

The decision to grant access to grand jury material is committed to the "substantial discretion" of the district court. Douglas Oil, supra, 441 U.S. at 223, 99 S.Ct. at 1675; see also Pittsburg Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323 (1959). Opposition to this petition is based upon...