*1 relief, conviction through appeal and not a direct of a conviction. Campanelli, State 362, 366, (1982). v. 142 Vt. 454 A.2d requirement The rationale for this is so that explored reported, the facts can be and with a review this developed Court based on a record and a full evaluation issues, all inadequate relevant rather than on the inferences Furthermore, of a transcript. trial origi- leaves appellate process nal free to conduct its review based on the fashion, record of the trial customary according to settled law. Durling,
State
491, 497-98,
v.
140 Vt.
442 A.2d
practice
This
is in accord with
ruling
the usual method of
on
claims of ineffective assistance of counsel at both the federal level
amongst
See,
and
Washington,
Strickland v.
the state
e.g.,
courts.
Talton,
(1984);
State
Affirmed. Association,
Herald Inc. v. Judicial Conduct Board A.2d
[544 596] No. 87-462 Dooley Mahady, JJ., Barney, (Ret.), Present: Keyser, C.J. J. (Ret.) Springer, (Ret.), Specially Assigned D.J.
Opinion January 22, Filed *2 Shea, Gravel and Hemley Robert B. and Dennis R. Pearson of Burlington, for Petitioner.
Carroll, George Pratt, Rutland, Respondent. & for Lisman, Carl H. Lisman and Michael Marks of Lisman & Bur- lington, Intervenor. for
Dooley, extraordinary by petition J. This is a relief filed a for (Board) newspaper against Vermont the Judicial Conduct Board gain discovery possession access to certain material in the the Board in In re William C. Hill. connection with the case of Apparently, discovery, formal, has substantial both informal and gone early on in the Hill case before the Board. Justice requests produce, served pages extensive and thousands of produced copying. documents were for examination and None of However, special the documents were filed with the Board. coun- sel, appointed present support complaint, the case supplemented response produce. his to the motion to This mate- by copy rial was sent Hill with a mail to counsel for Justice Mallary, Board, Richard Chairman of the Conduct at his Judicial business office. reporter
A petitioner became aware that the material being was requested sent to the ac- Judicial Conduct Board and Mallary cess to it. Chairman indicated that he would not act on request until it was full Board. It was discussed up date, taken with the Board on October 1987. On that discovery custody Board ruled that did not want material its Mallary’s and directed that the in Chairman materials possession disposed ruling of. That led to this ac- returned ruling extraordinary against Pending tion for the Board. relief Court, agreed from this to retain the material Board however, petitioner parties, agreed to which seeks access. The any to send further material to the and that agreement by petitioner. petitioner challenged is not Nor has the sought access to the that was never sent to the Board peti- Chairman. The sole issue before the Court is whether right pos- tioner has a to access to the materials session of the Board.1 (1) petitioner premises its to access on four sources:
the First and Fourteenth Con- Amendments United States (2) stitution; (3) Constitution; Article 13 of the Vermont the com- law; (4) Supreme Disciplinary mon the Rules of the Court for (the Board). Judges Control of rules for the Judicial Conduct case, unique Because of the nature of this we do not reach the legal petitioner. broad aspects theories advanced Since cases, these express theories are before this Court in other we very holding narrow and leave a discussion and resolution of most by petitioner of the issues day. raised to another *3 petitioner’s All arguments rely pre- on one basic supplemental responses mise —that the produce to the motion to in this case were “filed” the with Judicial Conduct Board when they and, therefore, were sent to the chairman became records of vigorously characterization, the Board. The Board resists in- this sisting filing that the could not occur until the Board ruled on accept whether to discovery the materials. We believe that Board has the argument better side of the and hold that the dis- covery materials Accordingly, deny petition were not filed. we reaching without questions petitioner.2 broader raised petition brought pursuant petition This was to V.R.A.P. 21 as a for extraordi nary Although petition fully comply relief. does not with the rule because allegation why exist, party there is no verified of alternative remedies do not no jurisdiction compliance has clearly contested or with the rule. Jurisdiction exists Ellison, 529, 531, under Herald Ass’n 138 Vt. 419 A.2d We procedural will treat defects as waived. petitioner appears accept consequence The to this of the determination agrees right whether the material was filed with the Board since it that it has no accept consequence, access to material not filed. Even if it did not this we any give would right rule in event that none of its theories of access to Newspapers, Burk, discovery Palm Beach unfiled Inc. materials. See 504 So. (Fla. 1987). 2d petitioner rely Both the and the Board on the rules of the Court, adopted by support position. See as this to their (1981) Disciplinary Judges Supreme Rules of Court for Control of petitioner JCB The stresses the confidential- [hereinafter Rules]. ity 6(7), files, provisions. papers, tran- Under JCB Rule “[a]ll scripts proceedings prior in and communications” Board However, “filing charge aof formal shall be confidential.” once a 6(15) charge respondent judge, formal is served on a JCB Rule proceedings public.” “the states that shall be Consistent with this dichotomy, required keep the chairman is two dockets —one containing complaints they dispositions, re- whether confidential; in charges, containing sult formal which is and one charges dispositions inspection formal which is “available for 6(20)(a) (b). as a record.” JCB Rule & Because the instant petitioner case charges, argues involves formal that effect files, provisions papers, of all these transcripts is that “all communications” Board are documents. 8(4) that, provides
Petitioner also relies on JCB Rule which “[djiscovery permitted provided shall be for in the Rules of argues wording adopts by Civil Procedure.” It that reference body the entire rules the Vermont Rules of Civil Procedure, 5(d), including requires V.R.C.P. which all papers subject to be right filed with the court to the court’s direct specifically that not be filed unless ordered or un- less the proceeding. is used of the court 5(d) to direct not be filed was added to Rule respond to allow courts discretion to to serious record stor- age problems Reporter’s that have arisen in some courts. See Notes —1982 argues Amendment to V.R.C.P. 5. Petitioner 5(d) Rule given authority dispense could have the Board filing deposition material, only but if it acted before the mate- question rial was filed. petitioner’s
We argument overly believe that embodies an rigid application technical and of the JCB Rules. While the rules *4 arise, are procedural many intended to cover most issues that respects they outline, represent an without the level of detail of the Appellate, Vermont Rules of Civil In- or Criminal Procedure.3 only separate encompassing only pages. There are eleven rules thirteen A num procedure ber of the rules deal with than matters other before the Board. For example, tempo Rule 4 establishes the structure of the Board. Rule 5 with deals rary suspension by Supreme the Court without recourse to the Board. deed, they expectation were drafted with the of and authorization for procedure supplement.4 JCB Rule Board-created rules of as a 6(4). Thus, accept general we do that a for dis- not authorization covery permitted” “as V.R.C.P. was also intended to dic- under tate discovery responses whether or would how be filed. Such an interpretation go beyond wording would well of the rule.
We further reject petitioner’s position timing petitioner Board’s action was so that determinative is entitled to access because the ruled after the material Board was sent to chairman, Although expressly rather than before. we do not point, 5(d) decide this specifically we note that V.R.C.P. does not require prior order, might possible so that for a court retroactively dispense discovery response filing with once it deter- 5(d) mines the filing. requires volume of such if Even V.R.C.P. prior order, it is impose unrealistic to this burden on the Board. The courts open times, of this state are for business at all with professional staff judges immediately and filing who can deal with See, e.g., issues. They routinely V.R.C.P. issuing pretrial 77. orders to scheduling filing requirements cover and under Rule 5(d). hand, Judicial Conduct only on the other meets as requires operates
business with little staff assistance. Rule 6(20) (a) provides complaint that a delivering is filed mailing it to practice, chairman. keeps the chairman all files at his private business office. Even if the sufficiently chairman had monitored his mail filing raise a issue with the case, materials in power this he had no to act until the full Board is, effect, met. This case, present what he did since he brought up the issue ruling possible for a Board as soon as petitioner’s request held abeyance access ruling. until The situation analogous provided somewhat to that in V.R.C.P. 5(e) which judge “permit allows the papers to be filed with him” but does not filing authorize judge right. as of See also Zenith Corp. Radio Co., Matsushita Elec. Indus. F. Supp. 866, (E.D. 1981) 898 n.59 (recognizes Pa. a distinction be- tween physically which is officially but within the adopted by No rules have strong why been the Board. There are reasons detail, Court and the Board long should avoid too much as there is sufficient guidance predictability protect rights See, parties. e.g., Bur bank, Rulemaking Procedural Under the Judicial Councils and Judi Reform Disability cial Conduct and Act 131 U. L. Pa. Rev. *5 who, court). Here, custody “judge” full Board at the is the filing. opportunity, permit the first ruled not to discovery specifically requires re- There is rule that no JCB shows, sponses parties had no clear As this case to be filed. required appropriate expectation filing was or so that of whether discovery in only minority generated this case involves a of the rule, In the Board underlying JCB action. the absence of a adopt policy filing a on the case. It did so was entitled to for rul- responses chairman. Its soon as it met after were sent to the in ing discovery responses the materials that not be filed covered in their The Board was correct this case and determined status. CBS, Inc. ordering denying petition. in See their return and this Court, (9th 1985) v. United States Dist. Cir. 765 F.2d (proper procedure improperly filed was to return it to for material it). party who filed case, in this
Because of the broad
interest considerations
important
holding
emphasize
it is
of our
narrowness
First,
not involved in this case.
important
it it
itemize what
virtually
dispute
this
is about
documents. Unlike
case,
in
papers
all other
are not filed
filed
a
materials
Instead,
support
opposition
specific
of or in
action.
dis-
court
covery responses
pro-
are filed so that
the court can monitor the
case,
reasons,
gress
security
of the
and as a convenience
discovery.
sought
Wright
case action is
on the
See 8 C.
& A.
Miller, Federal Practice and Procedure: Civil
§
in Se-
special
recognized
The
status of
materials was
Rhinehart,
attle Times Co. (1984),
involving
[A]ppellants have no dis- right common-law to examine the covery press question materials at There is that issue. no inspect public jointly possess right and the a common-law to copy public judicial . . . records and documents. Never- theless, private this court has col- observed that “documents during discovery lected ‘judicial are not ”. records’ Thus, appellants’ . . . common-law of access does not extend information is through to collected which a not matter of record. possess
. . . [A]ppellants rights no Amendment First protected provisions information which override the 26(c). Fed. a process, R.Civ.P. “matter of legislative grace,” statutorily is a created forum not tradi- tionally public. open to the Gropp, Inc.,
(citations omitted). Cipollone Liggett See also (3d 1986) (First F.2d 1119-20 Cir. Amendment considera- order). Anderson protective in tions not involved a But see Inc., (1st Cryovac, 1986) (First 805 F.2d Cir. Amendment cause). requires protective only good orders‘be issued Times Seattle particularly helpful and the thereafter cases 6(15) interpreting in provides JCB Rule the ser that “[a]fter upon proceed vice charge [respondent] judge, formal ings public.” adopted openness shall be We have an rule to foster process judiciary. integrity confidence and the These considerations do not mandate materi access 6(15) als. The “proceedings” term Rule should be viewed trials. As Seattle components relation to of civil and criminal clear, discovery Times makes traditionally events have not been “public components” traditionally viewed as of a trial aor Thus, discovery source of information. events cannot be viewed as components 6(15) “proceedings” essential that Rule makes public.5 specific by rule, ap Absent direction from this Court it is propriate give the Board discretion this area define what public.
A
important
second
factor in this case is that
involves
judicial discipline process and not a civil or criminal
As
trial.
result, different
interests are involved from those found determi
*7
First Amendment
Supreme
precedents.
native
Court
See
Coalition
Inquiry
v. Judicial
& Review
(3d
F.2d
784
467
1986);
Superior
Cir.
Mosk v.
Court
generally
see also
Los An
of
geles
County,
474,
1030,
25
Rptr.
Cal. 3d
P.2d
601
159 Cal.
494
(1979);
Complaints
Council on Judicial
Maley,
v.
241 this case distinguishes tial).7 statute governing The absence of a (1987), a 465, where Tallman, A.2d 422 State 537 148 Vt. from gave the statute district court plurality that the of this Court held in criminal probable cause public a to affidavits of access cases. public dis- permit minority states that
Vermont is one of a charges are after formal proceedings judicial closure of conduct any action is taken. further brought against before judge but Reassessing Always Golden: Isn’t Silence Beque, & See Sharman Process, Temp. Disciplinary Confidentiality in the Judicial at the for- 755, (1985) (19 public disclosure L.Q. allow states states, confi- we hold charge stage). In with all other mal common complaints, unless complaints, investigations of such dential stage public access to they charges. Denial of result formal publica- might result from protects “judges injury which from the Landmark complaints.” tion unexamined and unwarranted (1978). 829, Communications, Virginia, Inc. 435 U.S. against confidentiality applies complaints provision Our charges are formal judge, part charge, of a formal when other not Indeed, may greater need for pending there against judge. judge to defend confidentiality in to allow the such circumstances being forced against charges brought without that have been complaints been found to answer in a forum that have groundless by the Board. materials will be diffi-
The line between and confidential cult, respondent given full impossible, police if where the not against aspects all of the case access to tools to test Rio, 665, 686-87, In re Del Mich. 256 N.W.2d him. See Susteren, (1977); 312-13, 262 In re Van 82 Wis. 2d Respondent’s rights should N.W.2d matter, properly confi- a fear that extraneous be chilled rules, way find its into the record dential under our will through discovery. under acting within its discretion
We think the Board is
inap-
prevent
filed to
JCB Rules to
not be
direct
*8
7
judicial
applies
in view
records
It is
that the
records law
at all to
doubtful
power
judicial
specific
of the
branch
of the
statutes in the trial courts and the
1978);
parte Farley,
617,
(Ky.
New
Ex
570 S.W.2d
624
over its records. See
Clerk,
406-07,
404,
Publishing
Standard-Times
Co.
377 Mass.
Bedford
Corp.,
110,
Herald-Traveler
(1979);
Mass.
v. Boston
N.E.2d
Sanford
77(e).
156,
(1945); Reporter’s
V.R.C.P.
Amendment
to
propriate of Cf. Nichols disclosure confidential information. Gamso, A 35 N.Y.2d 315 N.E.2d 358 N.Y.S.2d members, policy nonfiling of find- also ensures that Board fact ers, do have inappropriate not access to and inadmissible infor- present mation. These either not or don’t have considerations are proceedings. the same force civil and criminal reasons, judicial foregoing For the that in a con we hold proceeding, may duct direct dis Judicial Conduct Board covery Further, may materials not filed di Board. discovery already possession rect that such sent to and in the parties. Discovery the chairman be returned materials possession pro in the either because it was never parties vided to the Board or because it was returned to the when raised, the issue was are considered not to have been “filed” with right, the Board. no Accordingly, the has enforceable Court, to to access these materials. Petition denied. J.,
Mahady, dissenting. respectfully I holding dissent from the majority that there is no of access to possession (Board) materials of the Judicial Conduct Board under the facts of this case.
Those important. facts are her According to uncontroverted af- fidavit, petitioner’s reporter period had over a of time obtained access to the pleadings and other motions filed with the Board the legal parties. September from counsel she provided became aware of materials which had been to the Board. She asked Justice Hill’s counsel for to dis- access all covery possession materials in the of the Board. She was told that objection counsel had no to such access but that un- counsel was derstandably go unwilling through to own his files in order to cull the files from provided those materials which had been suggested Board. It was that she examine the actual materials possession. the Board’s 14, 1987,
On reporter request October a made of the Board for access to days these materials. Two later met. the Board inWhile executive session the Board decided return dis- covery possession materials in its to counsel and order no further provided party materials be to the Board. No proceedings requested ruling had such from Board. *9 action, today approves, The Board’s which this Court is rather attempt put toothpaste akin to an back into the tube. Predict- ably, messy unconvincing. the result is both and files, clearly provide papers, transcripts
Our Rules that “[a]ll proceedings in communications before the Board before the 6(7). filing charge of a formal shall be confidential.” JCB Rule Here, cases, charge a formal filed. In has been such our Rules clearly provide charge that the service of a formal “[a]fter 6(15). proceedings public.” shall be JCB Rule
Making apparently assumption naive that our Rules mean precisely they say, simple what the issue is a one. The “papers proceeding materials are in ... before the Board [a] Therefore, . ...” A charge “proceed- formal has been filed. ings public.” shall be
However, majority, peti- characterizing at the same time argument overly tioner’s “embodfying] rigid an technical and application Rules,” of the JCB determines that the documents were never “filed” with the Board. The verb “to file” means “[t]o place among official records.” Collegiate Webster’s Ninth New Dictionary, were, fact, 462. The materials at issue placed among They the official records of the Board. are still say there. To the documents were not “filed” is to use lan- guage in reality. a manner which confounds professing “express very
While
holding,”
major-
narrow
ity goes
dicta
dangerous
suggest
on to broad
which
“there is no
constitutional or common law
to examine dis-
covery materials, whether or not filed.” This is a matter about
Cry-
Anderson v.
See,
which there
judicial unanimity.
e.g.,
is no
ovac, Inc.,
(1st
1986);
Newspapers
Worrell
an or criminal trial.” process not a civil discipline Rules which on our own proceedings governed Such placed access to documents public right to face create a their charges are formal the Board after among the official records of public confidence proceedings are also essential filed. Such lengths to gone to such the Board has The fact that judiciary. its *10 only ignorance and distrust secrecy [the breed “can create competence impartiality concerning suspicion Board] criticism, reporting, and de- robust proceedings]; free and of [its understanding rule of law and bate can contribute sys- [judicial] functioning of the entire comprehension by subjecting it system tem, quality of that improve well as accountability.” exposure and cleansing effects of (1976) 539, Stuart, 427 U.S. Press Association v. Nebraska “ J., the ba- (Brennan, concurring). ‘Openness . . . enhances both so appearance of fairness [proceeding] sic fairness of ” Tallman, State v. system.’ in the essential to confidence (1987) 465, 474, 422, (quoting Press-Enter- 148 Vt. 537 A.2d California, prise Superior Court 464 U.S. Co. (1984)). necessary way in this case to reach the consti While it is no issues, press guarantee of a free tutional the constitutional indeed, Judge clearly, starkly, background. Along in the Oakes, ‘pathological’ “I Blasi* a concern for share with Vincent amendment, Rights. Bill of the first indeed for the whole my [press] high on truth-seeking free remains The function of [a] Oakes, Tol appropriate self-government.” agenda, as essential to Amendment, L. Rev. Theory erance and the First 85 Mich. (1987). sadness, “very predict I that the narrow With dicta today’s majority along accompanying holding” of with its day way considerations will some find its into the constitutional circumstances, “my ‘pathological’ con of this Court. Under such gets cern Id. aroused.”
* Blasi, Linkage, Theory Toward a Prior Restraint: Central 66 Minn. L. Rev.