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First Amendment Coalition v. Judicial Inquiry and Review Board

February 14, 1986



Author: Weis

Before Adams, Weis, & Harris*fn*



WEIS, Circuit Judge.

The Pennsylvania Constitution provides that public access to records of the Judicial Inquiry and Review Board is allowed only if it recommends that the state supreme court impose discipline on a judge or member of the minor judiciary. The district court found that the federal constitution requires public disclosure by the Board in every instance in which it conducts a formal hearing even if no disciplinary action is recommended. We conclude that the Pennsylvania provision does not violate the federal constitution. In addition, we find that the Board's order banning witnesses from disclosing their own testimony is overboard. Accordingly, the district court's order will be vacated and the case remanded for the entry of a new decree.

Plaintiffs are Frederick Huysman, a reporter for the Pittsburgh Post-Gazette: Daniel Biddle, a reporter for the Philadelphia Inquirer; and the First Amendment Coalition, a nonprofit corporation comprising newspapers, broadcasters, and media organizations. Defendant is the Pennsylvania Judicial Inquiry and Review Board which receives, investigates, and processes complaints of misconduct against members of the state judiciary.

Plaintiffs commenced the action in February 1983 seeking to obtain access to Board proceedings. They alleged that the Board was conducting private hearings on charges of misconduct which it had lodged against Associate Justice Larsen of the Pennsylvania Supreme Court after receiving a complaint and conducting a formal investigation. In accordance with state constitutional and statutory provisions, as well as the Board's procedural rules, the public was denied access to the proceedings. During the hearings, plaintiffs Huysman and Biddle, who had been subpoenaed as witnesses, were prohibited "from disclosing in any way their own testimony or appearance before the Board." Plaintiffs contended that the state's confidentiality provision should be declared in violation of the First and Fourteenth Amendments of the United States Constitution.

Within a week after the suit was filed, the Philadelphia inquirer, one of the Coalition members, stated in an editorial that it had obtained a full transcript of the proceedings before the Board and began to publish purported verbatim excerpts. At about the same time, the Board dismissed the charges against Justice Larsen without recommending discipline.

The Board's prior practice had been to file a transcript of formal proceedings with the state supreme court in some cases in which the charges were dismissed, as well as in all those in which discipline had been proposed. After receiving an opinion from counsel, however, the Board determined that under the state constitution the record was to be sent to the court, and thus made public, only in those cases where discipline was recommended. Consequently, the Larsen record remained sealed.

The First Amendment Coalition then filed a petition for mandamus with the state supreme court asking that it compel the Board to file the record with the court. The petition was denied, the court stating that it was prohibited from granting the request because the Board had not suggested suspension, removal, discipline or retirement. In the absence of a recommendation by the Board there was "no constitutional authority for [the] court to review the record and act. The matter is constitutionally closed." First Amendment Coalition v. judicial Inquiry and Review Bd., 501 Pa. 129, 133, 460 A.2d 722, 724 (1983).

Following these developments, the district court received evidence on the history and practices of the Board. No material issues of fact were in dispute, and the plaintiffs' motion for summary judgment was granted. Preliminarily, the court rejected the Board's contention that the case was mooted by the Inquirer's publication of the Larsen transcripts. Observing that the Inquirer had "not shared its riches" with fellow members of the Coalition, the court found that the matter still presented a live dispute as to them. Moreover, the claims fell into the category of those capable of repetition yet evading review.

After surveying decisional law on the First Amendment and a right of access, the district court concluded that "a restriction on public and press access can be sustained, but only to the extent that it demonstrably advances significant governmental interests." First Amendment Coalition v. Judicial Inquiry and Review Bd., 579 F. Supp. 192, 211 (E.D. Pa. 1984). Noting that only a fraction of the Board's investigations result in formal charges,*fn1 the court found a substantial state interest "in protecting accused judges, and the judiciary itself, from the public hearing of charges, most of which will evaporate." Id. at 214. Consequently, the Coalition's "insistence on access to all charges other than those which are 'obviously unfounded or frivolous' is not persuasive." Id.

However, in instances where the Board has preferred formal charges, the court concluded that denial of access impairs the public's opportunity to appraise the work of the Board, the standards of judicial conduct it applies, and the consistency of enforcement.

Acknowledging the "trauma of public accusation," one which is "greater for an official who, die to the special constraints of the bench, is largely disabled from seeking public support," the court found a "tension between the identified public interest and the identified cost." Id. at 215. "The way of maximizing these twin interests is to permit access to all cases in which the Board prefers formal charges -- but to defer the time of access until the Board's filing with the Supreme Court of a transcript which fully records the Board's proceedings." Id. As a result, the state constitutional requirement was modified by the district court's directive that the Board make public, on disposition, the record of all proceedings in which it had filed formal charges.

In discussing the contentions of the individual plaintiffs, the district court recognized a valid state interest in insisting on witness secrecy. Id. at 217. Accordingly, the court declared that the Board may "impose confidentiality upon any witness who appears and testifies . . . concerning the fact of the witness' appearance and the substance of any testimony until such time as the record of the Board's proceedings are made available to the public."

All parties have appealed. Plaintiffs contend that the court erred in allowing access only to a transcript at the completion of formal proceedings and that the restrictions on nonparty witnesses violate the constitutional guarantee of free speech. The Board argues that the confidentiality requirement is appropriate the Board's role, has only slight impact on news-gathering, and is consistent with federal constitutional standards.


In response to the need for modernization of its constitution, Pennsylvania called a convention in 1968. Although a number of changes in the organization of state government were proposed, the principal item presented to the delegates was the preparation of a new judiciary article. The contention ultimately submitted a proposal, designated Article V of the state constitution, governing the selection, retention, and tenure of judicial officers.

One of the convention's most valuable contributions to that Article was the establishment of a Judicial Inquiry and Review Board, a constitutionally independent body to oversee the conduct of the state's judiciary. The essential elements of that proposal had been recommended to the Convention's Preparatory Committee in 1967 by the Pennsylvania Bar Association. That presentation expressed dissatisfaction with the cumbersome method of impeachment as the sole procedure for grappling with the problems of the aged, infirm, irascible, or, in rare instances, corrupt judge. The Bar advocated a new method of solving these problems, including measures short of removal from office.

Favorable comments were received on the operation of the California Commission on Judicial Qualifications, which had been established some years earlier. Speaking on behalf of the state bar association. Bernard G. Segal, Esquire, devoted special attention to the fact that a number of California judges had voluntarily resigned or retired while under investigation by the Commission. He also remarked that under California practice when a complaint is filed with the commission, its "investigations, deliberations, and conclusions on the case are completely secret, except, of course, if the Commission's decision is appealed to the Supreme Court." Statement of Bernard G. Segal on the Proposed Judiciary Article before the Preparatory Committee for the Pennsylvania Constitutional Convention.

Dean Laub of the Dickinson School of Law, a former judge, wrote an article listing the arguments for and against the features of the various plan proposed. He referred to the California plan noting, under that state's procedure "confidentiality is maintained until the matter is referred to the Supreme Court for decision." As a possible drawback to the California system, he listed the potential for abuse in the investigative power conferred on an independent agency. He also discussed criticism of the plan followed in New York because its proceedings had no assurance of confidentiality. Laub, Issues Before the Judiciary Committee of the Pennsylvania Constitutional Convention, 39 Pa. B.A.Q. 390 (1968).

Materials submitted to the delegates discussed in even greater detail the pros and cons of confidentiality in Board proceedings. Removal, Suspension, and Discipline of Judges, reprinted in, The Pennsylvania Constitutional Convention, Reference Manual No. 5; The Judiciary. See also Woodside, Pennsylvania Constitutional Law, 433-38 (1985) (The author is a former Pennsylvania appellate judge and was a delegate to the convention).

In presenting the plan for a Judicial Inquiry and Review Board to the convention for a vote, William W. Scranton, Chairman of the Convention's Judiciary Committee and a former governor of Pennsylvania, urged adoption. He stated that if the proposal were approved it would be "a tremendous step forward for the people of Pennsylvania as well as for the judges of same. It protects the judges and at the same time makes changes where changes are necessary in the finest kind of way." Journal of the Constitutional Convention, February 29, 1968, page 1374. Review of the convention materials thus demonstrates that the question of confidentiality was actively considered in the preparation of the constitutional amendment.

As finally adopted by affirmative vote of the people of the state, the constitution provides for a Board composed of five judges, two lawyers, and two laymen. It receives complaints or reports and makes preliminary investigations. After further examination, the Board may order a hearing and direct the attendance and testimony of witnesses. "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." Pa. Const. Art. V, § 18(g).

The state supreme court reviews the Board's record and may receive additional evidence. Following that, the court may order discipline as recommended by the Board, may impose a different measure of discipline, or may exonerate the accused judge. "All papers filed with and proceedings before the Board shall be confidential but upon being filed by the Board with the Supreme Court, the record shall lose its confidential character. The filing of papers with and the giving of testimony before the Board shall be privileged." Pa. Const. Art. V. § 18(h).

Implementing legislation consistent with the constitutional language was enacted and codified at 41 Pa. Cons. Stat. Ann. § 2101 et seq. (Purdon 1981). In accordance with a constitutional directive, the state supreme court drafted rules of procedure for the Board.


Certain features of this case discussed by the parties in their briefs play no part in today's decision. Initially, we note that although the Board's earlier practice was to file its record with the state court in some cases where the charges were dismissed, it has now been authoritatively established that the state constitution permits filing only where discipline has been recommended. The Coalition does not now contend that the Board's prior practice was consistent with the state constitution. The district court recognized the state's construction of its constitutional provision as binding on the federal courts, and we agree with that determination.

Additionally, it should be apparent that since there has been publication of substantial portions of the Larsen hearings, the merits of that proceeding are not particularly pertinent here. The case before us is not legally moot, but realistically what is at stake is the Board's procedure in future cases.

The obvious must also be stated. The Coalition's claims are based on an alleged right of access, not a right of publication. Although both have their roots in the First Amendment, these principles are doctrinally discrete and precedents in one area may not be indiscriminately applied to the other. In general, the right of publication is the broader of the two, and in most instances, publication may not be constitutionally prohibited even though access to the particular information may properly be denied. New York Times Co. v. United States, 403 U.S. 713, 29 L. Ed. 2d 822, 91 S. Ct. 2140 (1971) (per curiam).

The issue before us is not whether the First Amendment prohibits the state from barring public observation of judicial disciplinary proceedings at all stages. Pennsylvania has provided for disclosure but has limited it to the situation in which discipline has been recommended and the record has been filed with the court. Consequently, we assume, but do not decide, that there is a constitutional right of access to disciplinary proceedings at some stage.

In argument before the court, counsel for the Coalition conceded that "the most difficult issue is the issue of where in the process the right of access attaches and we have struggled with this issue." Indicative of that difficulty is the Coalition's retreat from its original position that access was required to "all proceedings on charges which the Board has determined not to be frivolous or obviously unfounded." The plaintiffs' brief at 6. That would have permitted disclosure of informal action by the Board such as private reprimands and requests for resignations in lieu of formal hearings. The Coalition's present contention is that contemporaneous access should commence at the point where the Board issues formal charges against a judge.

Although we assume a right of access, it does not attach at the same time it might in certain other contexts and at the point the Coalition urges on us here. By analogy to the cases establishing a First Amendment right of access to criminal trials, see, e.g., Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 65 L. Ed. 2d 973, 100 S. Ct. 2814 (1980), and this court's decision to extend the rationale to civil trials, Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984), the Coalition maintains that where a constitutional right of access is found to exist, a "presumption of openness" is created. This presumption, the Coalitions contends, places the burden on the state to justify restrictions on access by showing a "compelling governmental interest [which the restriction] is narrowly tailored to serve." Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 73 L. Ed. 2d 248, 102 S. Ct. 2613 (1982).

All rights of access are not co-extensive, however, and some may be granted at different stages than others. In assuming a right of access, we need not postulate a span as extensive as that in civil and criminal trials as such, but rather may be guided by the unique history and function of the Judicial Review Board.

Richmond Newspapers and the cases decided in its wake stressed the tradition of open trials in England and then later in colonial America. Since the Bill of Rights had been adopted "against the Backdrop of the long history of trials being presumptively open," 448 U.S. at 575, the Court concluded that the First Amendment prohibits the "government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted." Id. at 576.

But the cases defining a right of access to trials are, at best, of limited usefulness in the context of the fundamentally different procedures of judicial disciplinary boards. These administrative proceedings, unlike conventional criminal and civil trials, do not have a long history of openness. Recognizing this fact, the Coalition points to time honored judicial removal in open impeachment hearings.

Had the state constitutional convention acted to replace traditional impeachment with a substitute vehicle like the Judicial Inquiry and Review Board, a closer question of public access to the successor proceedings would be presented. But it is clear that the Board's functions are intended to supplement rather than replace the historical methods of judicial discipline: impeachment and removal for conviction of a crime. Pa. Const. Art. V, § 18(h). 18(1); see also Judicial Discipline, 84 Dick. L. Rev. 447, 449-52 (1980). It was largely the recognition that these traditional methods are cumbersome and ineffective, partly because of their openness, that spurred the constitutional convention to conceive the new judicial disciplinary procedure.

Against this background, the "presumption of openness" gleaned from the history of criminal trials surveyed in Richmond Newspapers lacks force. Rather, in judicial disciplinary proceedings, what tradition there is, favors public access only at a later stage in the process. A temporally based right is no stranger to the law. For example, tradition supports the secrecy of the grand jury, the entity in the criminal justice system to which the Board is most akin. Similarly, sidebar conferences between lawyers and judges at trial are contemporaneously confidential although they may later appear as part of the transcripts. See United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir. 1977).

In choosing the point at which formal charges are filed as the stage when proceedings should become public, the Coalition uses an analogy with traditional criminal procedures beginning with the indictment. It would treat formal proceedings before the Board as the equivalent of the criminal pre-trial and trial proceedings. This analogy is faulty because the Board cannot impose, but only recommend, punishment, and in that sense its functions are similar to those of the grand jury. Only the state supreme court has the power to discipline just as in the criminal field only a court has the power to sentence.

It may be said that the Board's recommendation has the effect of an indictment, not a conviction. The traditional notion of protection for a non-indicted target applies equally well in the disciplinary setting. That the Board's rules grant the accused more extensive procedural rights than are allotted to the subject of a grand jury investigation does not undermine the analogy.

Forcing judicial review proceedings into an older criminal procedural mold would have a stifling effect on a state's ability to use creative methods in solving its problems. It is quite uncertain whether the state would have chosen a judicial disciplinary program or have been able to implement one in the absence of the confidentiality provision. The Coalition has failed to show that he right of access it urges is so compelling as to justify the restriction on the state's freedom of choice.

The Coalition goes beyond tradition when it argues that the "structural values" of the First Amendment are served by subjecting the proceedings of the Board to greater public access. In his concurring opinion in Richmond Newspapers, Justice Brennan wrote that the First Amendment embodied more than a commitment to free expression for its own sake but included a "structural" role in government. falling within this concept is the notion that the public must be properly informed in order for democracy to survive.

The Coalition contends that the Board, in carrying out its assignments, is performing a governmental function. The public has an interest in information about the conduct of its judiciary and consequently is entitled to assurance that the Board is properly discharging its duties. As we recently noted in United States v. Smith (Appeal of the Patriot News Co.), 776 F.2d 1104 (3d Cir. 1985), structural values have been a consideration in the decisions granting a ...

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