Subpoena on Judicial Inquiry and Review Bd., In re

• Decision Date: 07 June 1983
• Citation: 512 Pa. 496,517 A.2d 949
• Parties: , 55 USLW 2371 In re SUBPOENA Served by the Pennsylvania Crime Commission ON the JUDICIAL INQUIRY AND REVIEW BOARD, Dated
• Court: Pennsylvania Supreme Court

Page 949

517 A.2d 949

512 Pa. 496, 55 USLW 2371

In re SUBPOENA Served by the Pennsylvania Crime Commission

ON the JUDICIAL INQUIRY AND REVIEW BOARD, Dated

June 7, 1983, Number 83194.

In re PETITION FOR ENFORCEMENT OF A SUBPOENA TO the

PENNSYLVANIA JUDICIAL INQUIRY AND REVIEW BOARD.

Supreme Court of Pennsylvania.

Argued May 13, 1986.

Decided Nov. 19, 1986.

Donald E. Johnson, Chief Counsel, Pa. Crime Comm'n, St. Davids, G. Alan Bailey, Norristown, for petitioner.

Marion E. MacIntyre, Deputy Executive Atty. Gen., Harrisburg, Perry S. Bechtle, Philadelphia, for respondent.

Before NIX, C.J., and FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

ZAPPALA, Justice.

The Pennsylvania Crime Commission has petitioned the Court pursuant to Pennsylvania Rule of Appellate Procedure 3331(a)(5) for review of an order of the Commonwealth Court refusing to enforce a subpoena issued by the Commission and served on the Judicial Inquiry and Review Board. We have jurisdiction of this matter under 42 Pa.C.S. § 723(a).

The parties have stipulated to certain facts relevant in assessing the competing legal claims. Between May 8, 1983 and May 25, 1983, numerous articles and editorials appeared in The Philadelphia Inquirer, a general circulation newspaper, purporting to deal with an investigation of Supreme Court Justice Rolf Larsen by the Pennsylvania Judicial Inquiry and Review Board, and with the Board's sealing of the record of the investigation. These articles identified many high-ranking public officials and candidates for public office as witnesses before the Board, and contained what were represented to be verbatim transcripts of substantial portions of their testimony. (Stipulations of Fact 9-11).

According to Commissioner Alvin B. Lewis, who testified in the court below, the Pennsylvania Crime Commission took note of the information contained in the alleged verbatim transcripts published in these articles and decided by formal resolution that an investigation of possible "public corruption" was warranted.

On June 7, 1983, the Commission issued a subpoena to the Board which was served on the Board's Executive Director, Richard E. McDevitt, on June 13, 1983. The subpoena, returnable on June 28, 1983, called for "the entire record of all proceedings including, but not limited to, testimonial transcripts and documents of The Judicial Inquiry and Review Board's investigation and hearings in the matter of Justice Rolf Larsen." (Stipulations of Fact 1, 4, 7, 8).

In the Commonwealth Court, the Board filed a motion to quash the subpoena and the Commission filed a petition to enforce the subpoena. After several hearings, the court denied the enforcement petition and granted the motion to quash, holding that the confidentiality of the Board's proceedings is not a qualified privilege, but "can only fall when the record of Board proceedings is accompanied by a recommendation [to the Supreme Court] for censure and at no other time." In Re: Subpoena to Judicial Inquiry and Review Board, 79 Pa.Cmwlth. 375, 391, 470 A.2d 1048, 1055 (1983). ¹

In asking this Court to reverse the Commonwealth Court's order denying enforcement of its subpoena, the Commission, while acknowledging the constitutional basis of the Board's privilege of confidentiality, argues that the court below interpreted that privilege too expansively. The Pennsylvania Constitution provides as follows:

(g) If, after hearing, the board finds good cause therefor, it shall recommend to the Supreme Court the suspension, removal, discipline or compulsory retirement of the justice or judge.

(h) The Supreme Court shall review the record of the board's proceedings on the law and facts and may permit the introduction of additional evidence. It shall order suspension, removal, discipline or compulsory retirement, or wholly reject the recommendation, as it finds just and proper.... All papers filed with and proceedings before the board shall be confidential but upon being filed by the board in the Supreme Court, the record shall lose its confidential character....

Pa. Const. Art. V, § 18(g), (h) (emphasis added).

The Commission first analyzes the language of the constitution, arguing that nowhere is there a prohibition preventing the Board from filing any or all of its records with the Court regardless of whether they contain recommendations of punitive measures. According to the Commission the Constitution provides only that the Board must file its record when it does recommend discipline; it is silent as to whether the Board may file its record when no disciplinary recommendation is found appropriate. The final step in this argument is that since the Board may in its discretion file its record with the Court, and the continuing confidentiality of the record is dependent only on whether it does file the record, the Board's discretion, and not a constitutional mandate, is the only support for the claim of confidential privilege.

In support of this argument the Commission cites the past practice of the Board in filing a record of the proceedings with the Supreme Court upon the completion of the Board's consideration of a matter, whether or not a recommendation of discipline was made, a practice acknowledged by the Board in its Answer to a Complaint filed in the United States District Court for the Eastern District of Pennsylvania. See The First Amendment Coalition v. Judicial Inquiry and Review Board, 579 F.Supp. 192 (1984), vacated and remanded, 784 F.2d 467 (3d Cir.1986). ²

Whatever the prior practice of the Board may have been, the short answer to this strained reading between the lines of the Constitution is that this Court has already rejected an almost identical argument.

The authority conferred on this Court by subsection (h) to "order suspension removal, discipline or compulsory retirement, or wholly reject the recommendation" is the only dispositional authority granted to this Court by Article V, section 18 of the Pennsylvania Constitution, and is of course dependent upon the existence of a Board recommendation of action in the first place. If, as in the present matter, a majority of the Board determines that suspension is not warranted, there is no recommendation of action for the Board to make and thus no constitutional authority for this Court to review the record and act. The matter is constitutionally closed.

First Amendment Coalition v. Judicial Inquiry and Review Board, 501 Pa. 129, 132-33, 460 A.2d 722, 724 (1983) (emphasis added). It is true that the First Amendment Coalition case and the companion case In the Matter of Petition of the Pennsylvania Bar Association, 501 Pa. 127, 460 A.2d 721 (1983), turned on whether this Court had authority to assume jurisdiction over a disciplinary proceeding before the Board or otherwise compel the Board to file its record in the Court so that we might undertake further review. This difference is of no significance, however, because the basis for the decisions in those cases, the constitutionally established structure of the relationship between the Board and the Court, requires the same result here. The Board is an independent body. Its only contact with the Court, aside from the power of the Court to appoint certain of its members and to prescribe rules of procedure, is the recommendation of disciplinary action accompanied by the filing of the record of the proceedings leading to that recommendation. Absent a recommendation for the Court to act the Board presents no matter or proceeding for the Court's consideration. We know of no basis for a party to file, or for the Court to accept for filing, documents on which no action may be taken. The Court is not a clearing-house or depository for public documents related to the functioning of the judiciary.

The Commission next argues that the privilege of confidentiality granted to the Board in the Constitution is not absolute but must be viewed in light of its purposes, giving way when those purposes can no longer be served. The Commission looks to a United States Supreme Court case, Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978) for a summary of the purposes supporting the confidential status of records of judicial disciplinary boards. These are

encouraging the filing of complaints and the voluntary participation of witnesses by providing protection against reprisal or recrimination; protects [sic] judges from the injury which could result from publication of unexamined and unwarranted complaints; and, maintains [sic] confidence in the judiciary as an institution by preventing the premature announcement of groundless claims of judicial misconduct or disability.

Petitioner's Brief at 18-19, paraphrasing Landmark Communications, 435 U.S. at 835, 98 S.Ct. at 1539.

In the context of the present case, the Commission contends that none of these purposes is served by continued confidentiality of the Board's records. In fact, it is argued, disclosure of the records would better serve some of these interests. The Commission observes that according to the Rules of Procedure governing matters before the Board, once an investigation has proceeded beyond the preliminary stage, the judge in question must be notified of the complaint and the identity of the complainant. The judge may also attend all proceedings, where he would have the opportunity to become aware of the identity of other witnesses. Where, as here, all proceedings before the Board have been completed, there is said to be no further need to protect the complainant and other witnesses against reprisal.

As for the protection of a subject judge from publicity surrounding unfounded complaints, it is argued that this rationale for keeping Board proceedings confidential is no longer meaningful after the time when frivolous complaints are separated from meritorious ones. Once the Board has found cause to proceed beyond a preliminary investigation to a...