Providence Journal Co. v. Newton

• Citation: 723 F. Supp. 846
• Decision Date: 14 July 1989
• Docket Number: 89-0148 P.,Civ. A. No. 89-0146 P
• Parties: PROVIDENCE JOURNAL COMPANY v. Linda H. NEWTON, et al. Stephen G. KASS, et al. v. Linda H. NEWTON, et al.
• Court: U.S. District Court — District of Rhode Island

723 F. Supp. 846

PROVIDENCE JOURNAL COMPANY v. Linda H. NEWTON, et al.

Stephen G. KASS, et al. v. Linda H. NEWTON, et al.

Civ. A. Nos. 89-0146 P, 89-0148 P.

United States District Court, D. Rhode Island.

July 14, 1989.

Joseph V. Cavanagh, Jr., Providence, R.I., for plaintiffs.

Gary Yesser and Nicholas Long, R.I. Atty. General's Office, Providence, R.I., for defendants.

OPINION AND ORDER

PETTINE, Senior District Judge.

This consolidated action involves a facial challenge to the constitutionality of statutory and regulatory provisions governing the confidentiality of matters pending before the Rhode Island Ethics Commission (hereinafter "the Commission"). This matter first came before the Court on plaintiffs' motion for a temporary restraining order enjoining defendants, their agents, servants and employees, and all persons acting by, through or under them directly or indirectly, from enforcing the offending provisions. This Court having granted, and continued, the restraining order pending the filing of summary judgment motions in the case, and those motions and objection thereto having been received, I today hold that the provisions complained of constitute an unconstitutional restraint on protected speech in violation of the First and Fourteenth Amendments to the Constitution of the United States. Accordingly, plaintiffs' summary judgment motion is granted, and defendants are permanently enjoined from enforcing the confidentiality requirements at issue against complainants in proceedings before the Commission.

I. JURISDICTION

As a preliminary matter, this Court notes in passing that plaintiffs have brought this action against the Executive Director, Chair and members of the Rhode Island Ethics Commission, in their individual and official capacities, under both the First and Fourteenth Amendments to the Constitution of the United States and the Civil Rights Act of 1871, 42 U.S.C. Secs. 1983 and 1988, and have based the Court's jurisdiction over their claim in 28 U.S.C. Secs. 1331, 1343, 2201 and 2202. On June 15, 1989, the United States Supreme Court rendered an opinion in Will v. Michigan Dept. of State Police, ___ U.S. ___, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), holding that neither a State nor its officials acting in their official capacities are "persons" within the meaning of Section 1983 and noting that, as a result, Section 1983 "does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties." Id. at ___, 109 S.Ct. at 2309. At footnote 10, however, the Supreme Court made it clear that its holding applies only to actions for retrospective relief, not to prospective actions seeking injunctive relief:

Of course a State official in his or her official capacity, when sued for injunctive relief, would be a person under Section 1983 because "official-capacity actions for prospective relief are not treated as actions against the State." Kentucky v. Graham, 473 U.S. 159 at 167, n. 14 105 S.Ct. 3099 at 3106, n. 14 (1985); Ex parte Young, 209 U.S. 123, 159-60 28 S.Ct. 441, 453-54, 52 L.Ed. 714 (1908).

Id. at ___, n. 10, 109 S.Ct. at 2311 n. 10. This action, which seeks only to make permanent the temporary injunction blocking enforcement of the challenged provisions, is thus properly brought under Section 1983.

II. UNDISPUTED FACTS

The facts of this case are simple and are not in dispute. On February 28, 1989, plaintiff Alfred Gemma filed with the Rhode Island Ethics Commission a complaint against Francis X. Flaherty, the Mayor of the City of Warwick, Rhode Island, and against the members of the Warwick City Council. Immediately thereafter, the Commission mailed to Gemma notification that it had received his complaint, together with a Notice Regarding Confidentiality that spelled out the statutory and regulatory provisions mandating confidentiality in proceedings before the Commission. Despite, however, the Commission's admonition that any disclosure of the existence or contents of the complaint would subject Gemma to criminal and civil sanctions, Gemma spoke with the media about the proscribed matter. Subsequently, on March 2, 1989, plaintiff Providence Journal Company published information about the Gemma complaint, reporting that it had been filed and setting out in some detail the allegations contained therein. On March 3, 1989, plaintiff Stephen G. Kass followed suit, commenting on the complaint and its contents.

Although no enforcement action has ever been commenced or threatened against plaintiff Gemma, the Commission, by its Executive Director, did respond to the public disclosures of information regarding Gemma's complaint by informing plaintiff Providence Journal Company of its intention to enforce the confidentiality rules against the newspaper. Accordingly, on March 7, 1989, the Providence Journal Company filed this action seeking declaratory and injunctive relief. Plaintiffs Gemma and Kass, joined by plaintiffs Steve Brown, Executive Director of the Rhode Island affiliate of the American Civil Liberties Union, Norma Kaplan, an individual who regularly speaks out on the conduct of public officials, and William McLoughlin, a Brown University professor who regularly comments on public affairs, filed a parallel suit on the same day.

On March 8, 1989, this Court entered its temporary restraining order, then extended the order on March 27, 1989 pending the filing of summary judgment motions. Before these latter submissions were received by the Court, however, the State of Rhode Island stipulated, through the Chief of the Civil Division of the Department of the Attorney General, "that the position of the defendants ... has been and remains that the statute and regulations which are the subject of the pending lawsuit have historically been and remain interpreted to cover only complainants and respondents and not third persons," and further stated that "the only matter remaining to be decided is the constitutionality of the statute and regulations as applied to plaintiff Alfred Gemma." Letter of April 7, 1989 from Nicholas Trott Long, Chief, Civil Division, Department of the Attorney General. Accordingly, this Court is called upon today to decide only whether the State of Rhode Island may subject Alfred Gemma, the complainant in a proceeding before the Rhode Island Ethics Commission, to criminal and civil sanctions for publicly divulging information regarding his complaint when such information has been declared confidential by State statutes and regulations.

III. THE CHALLENGED PROVISIONS

Effective June 25, 1987, the State of Rhode Island adopted Chapter 14 of Title 36 of the Rhode Island General Laws, entitled "Code of Ethics." See generally R.I. Gen.Laws Sec. 36-14-1, et seq. (1984). Styled as a code of ethics in government, the statute subjects all elected and appointed state and municipal officials, together with employees of state and local governments, boards, commissions and agencies, to its strictures. R.I.Gen.Laws Secs. 36-14-3 and 36-14-4. In general, the statute is designed to advance the policy "that public officials and employees must adhere to the highest standards of ethical conduct, respect the public trust and the rights of all persons, be open, accountable and responsive, avoid the appearance of impropriety, and not use their position for private gain or advantage." R.I.Gen.Laws Sec. 36-14-1. To implement this avowed policy, the statute proscribes an array of activities that conflict or appear to conflict with the proper discharge of official duties. R.I.Gen.Laws Sec. 36-14-5.

Section 36-14-8 of the statute commits enforcement of the Code to the Rhode Island Ethics Commission, an independent, nonpartisan body composed of fifteen (15) members appointed by the Governor. This Commission is vested with broad administrative, educational, advisory, investigative, adjudicative and removal powers, including the power to investigate and adjudicate specific complaints of Code violations. R.I. Gen.Laws Secs. 36-14-9 through 36-14-14.

Among the particular prohibitions enumerated in Section 36-14-5 of the Code are provisions designed to ensure the confidentiality of proceedings before the Ethics Commission. Specifically the statutes provides:

No person shall knowingly and wilfully make public any complaint or the content of any complaint filed under this chapter without the consent of the person against whom the complaint has been filed, unless and until an adjudicative panel of the commission renders a final decision on the complaint following (i) a probable-cause finding by an investigating committee of the commission, pursuant to Section 36-14-12(d)(4) of this chapter and (ii) the conduct of an adjudicative hearing pursuant to Section 36-14-13 of this chapter.

R.I.Gen.Laws Sec. 36-14-5(l).¹ This confidentiality requirement is further explicated in the implementing rules and regulations to the Code of Ethics, as amended,² which state:

Regulation 36-14-5004 Written waiver requirements

Consent or other waiver of confidentiality permitted under any provision of this chapter or these regulations shall not be valid unless a written waiver of confidentiality, on a form provided by the commission, is signed and filed by the respondent.

Regulation 36-14-5005 Public forum exceptions³

The prohibitions contained in this Chapter and regulations thereto shall not be construed to limit or prevent any person subject to this Chapter from publicly expressing his or her own view points sic in a public forum on any matter of general public interest or on any matter which directly affects said individual or his or her spouse or dependent child.

Regulation 36-14-5006 Definition — "make public"

The term "make public" as used herein shall mean and include any unauthorized disclosure under the law and shall be and is meant to prohibit any public discussion of a complaint even if prior unauthorized disclosure has been made.

Taken together, ...