The First Amendment Coalition, Frederick J. Huysman and Daniel R. Biddle, in 84-1164 v. Judicial Inquiry and Review Board, in 84-1153

appropriate under all circumstanc gants is

es, regardless any other considerations. COALITION, The FIRST AMENDMENT v. Board Medical England State In Huysman Frederick J. and Daniel R. Examiners, Biddle, 84-1164, Appellants U.S. (1964), 467,11 example, L.Ed.2d apply holding refused to its INQUIRY JUDICIAL AND REVIEW parties before it when to do so case to BOARD, Appellant in 84-1153. irremediably prejudiced would have reasonably prior party who had relied on 84-1153, Nos. 84-1164. Weist, contrast, McSparran v. By law. Appeals, United States Court of denied, Cir.1968), cert. (3d 402 F.2d Third Circuit. 1739, 23 L.Ed.2d 217 (1969), in which this court overruled its Argued Jan. 1985. approval of “manufactured” di previous Reargued In Banc Nov. 1985. versity citizenship as a basis for federal applied the new rule to the jurisdiction, we Decided Feb. finding the court parties before after As Amended Feb. dismissing the action on that basis not result irremediable harm would could still institute an plaintiff who Id. at 876. See also court.

action (similar analysis apply to all

id. at 877 involving arising of action be causes

cases decision). Dismissal of

fore the date of would, course, here for

plaintiffs claim go permitting And the case to

ever bar it. prejudice Searle’s defense will not

forward addition, merits. we note that

on the

affirming the district court’s dismissal enti ground suit on the that Searle is its constitutional at

tled to the benefit of para would have the

tack on the statute denying plaintiffs the ben

doxical effect of appeal on the issue successful

efit sum, retroactivity. the circumstances excepting this case do not warrant generally applicable rule from the

Searle today.

we announce

VI. therefore, hold, that the district court

We retroactively holding applying

erred tolling statute violated Jersey the New We reiterate Clause.

the Commerce as to the constitutional- no view express tolling statute.

ity vel non court will be vacat- the district

judgment of for further case remanded and the

ed opinion.

ceedings consistent Adams, Judge, opinion Argued Jan. Circuit concurring part dissenting part and HARRIS,* ADAMS, WEIS Before and Sloviter, Mansmann, Gibbons, which and JJ. Judges, joined. Circuit Reargued Banc Nov. ADAMS, Acting Judge, and

Before Chief HUNTER, SEITZ, GIBBONS, III, JAMES WEIS, GARTH, A. HIGGIN- LEON BOTHAM, SLOVITER, BECKER, Jr., STAPLETON, MANSMANN, Circuit Judges. THE

OPINION OF COURT WEIS, Judge. Circuit provides Constitution access to records of the Judicial Inquiry and Board Review is allowed supreme if it the state recommends impose discipline judge or mem- court judiciary. ber of the minor The district found the federal constitution Board in requires disclosure a for- every instance in which conducts hearing disciplinary mal if no action is even Penn- recommended. We conclude that the sylvania provision does not the fed- violate addition, we find that eral constitution. banning witnesses from order disclosing testimony own is over- Accordingly, or- the district court’s broad. will be vacated and case remanded der new entry for the decree. Huysman, a re- Plaintiffs Frederick Pittsburgh Post-Gazette; porter for Biddle, reporter Philadel- for the Daniel Inquirer; and the First Amendment phia Coalition, corporation compris- nonprofit broadcasters, and ing newspapers, media Pennsyl- organizations. Defendant is the Inquiry and Review Board vania Judicial Hat- (argued), E. Samuel Klein Katherine receives, investigates, processes Graf, P.C., Kohn, Savett, ton, Marion & complaints against members of misconduct Pa., Co- Philadelphia, for First Amendment judiciary. of the state alition, Huysman, Daniel Frederick J. in Feb- Plaintiffs commenced the action Biddle. R. seeking to access to ruary 1983 obtain They proceedings. alleged that the (argued), 0. Board Perry S. Bechtle Conrad conducting private hearings on Kattner, Doak, Philadelphia, LaBrum & lodged it had Pa., charges of misconduct which Inquiry and Review Bd. for Judicial Harris, Arkansas, sitting by designation. States Dis- Oren United *The Honorable Judge Western Districts the Eastern and trict for Associate Justice Larsen of the dation the Board there was “no constitu- Pennsylvania Supreme authority Court after receiv- tional court to review [the] ing complaint conducting a formal the record and act. The matter is constitu- investigation. tionally with state In accordance closed.” First Amendment Coali- statutory provisions, Bd., Inquiry constitutional and tion v. Judicial and Review rules, procedural the 501 Pa. well as the Board’s 460 A.2d public proceed- denied access to the was Following developments, the these dis- ings. During hearings, plaintiffs the trict court received evidence on the Biddle, Huysman who been sub- practices of the Board. No material witnesses, prohibited poenaed as were dispute, issues of fact were in and the disclosing any way own tes- “from plaintiffs’ summary judgment motion for timony appearance Board.” before the granted. Preliminarily, was the court re- Plaintiffs contended that the state’s confi- jected the Board’s contention that the case dentiality provision should be declared in Inquirer’s publication was mooted the of the First and Fourteenth violation transcripts. Observing Larsen Amendments of the United States Constitu- Inquirer had “not shared its riches” with tion. Coalition, fellow members of the the court filed, presented was

Within a week after the suit found that the matter still a live dispute Moreover, Philadelphia Inquirer, one of the Coali- as to them. the claims members, category capable editorial that it fell into tion stated an of those transcript pro- repetition yet evading full of the had obtained a review. ceedings began Board and before the surveying After decisional law on the

publish purported excerpts. At verbatim First Amendment and a time, the dismissed about the same Board district court concluded that “a restriction against charges Justice Larsen without public press access can be sus- recommending discipline. tained, only to the extent that it demon- practice strably significant governmental prior

The Board’s had been to advances transcript proceedings with file a of formal interests.” First Amendment Coalition Bd., supreme Inquiry court in some cases in and Review state v. Judicial dismissed, (E.D.Pa.1984). charges F.Supp. Noting as well which the were discipline in all those in had been that a fraction of the Board’s investi- opinion gations charges,1 proposed. receiving After result in formal the court however, counsel, pro- interest “in the Board determined found a substantial state tecting judges, judiciary record and the that under the state constitution the accused itself, court, public hearing charges, sent to the and thus made from the was to be discipline evaporate.” at 214. public, only in those cases where most of which will Id. Consequently, Consequently, the Lar- “insistence on was recommended. Coalition’s charges to all other than those sen record remained sealed. access ‘obviously which are unfounded or friv- The First Amendment Coalition then persuasive.” olous’ is not Id. petition for mandamus with the However, asking compel in instances where the Board supreme state that it charges, preferred formal the court file record with the court. has the Board to impairs denied, stating denial of access the court concluded that petition granting public’s opportunity appraise the work prohibited from that it was Board, judicial con- sug- of the the standards of the Board had not request because consistency removal, applies, and the of en- suspension, discipline or duct it gested forcement. of a recommeh- retirement. the absence F.Supp. complaints include those These complaints filed with the 195. “Out of the 3040 history, only eighty- judiciary fourteen-year as well members of the minor Board in quité percent resulted in against judges three four—not a Board decision to of courts of record. as those —have charges." prefer formal constitu- designated ac- Article V of

Acknowledging the “trauma of selection, retention, tion, cusation,” governing the “greater for an one which is who, tenure of officers. special official due constraints bench, largely from seek- disabled most valuable One of convention’s ing public support,” court found a “ten- Article estab- to that was the contributions interest sion between identified Inquiry and Review lishment of “The and the identified cost.” Id. independent body constitutionally way maximizing twin interests judi- oversee conduct state’s in which the permit to all cases pro- ciary. The essential elements of charges de- prefers formal posal —but the Con- had been recommended to until the Board’s fer the time of access Preparatory in 1967 vention’s Committee filing tran- with That Bar Association. fully the Board’s script which records presentation expressed dissatisfaction result, ceedings.” As a the state con- Id. impeachment the cumbersome method of requirement was modified stitutional procedure grappling as the sole for that Board court’s directive the the district irascible, infirm, aged, problems the disposition, of public, the record make on or, instances, corrupt judge. in rare filed proceedings in which it had formal all solving of Bar advocated a new method charges. including problems, measures short of removal from office. discussing of the indi- In the contentions recog- plaintiffs, the court district vidual were received on Favorable comments insisting on nized a state interest valid operation the of the California Commission Accordingly, secrecy. Id. at 217. Qualifications, witness been on which had may “im- Speaking the court declared that years established some earlier. upon any association, confidentiality witness who pose the bar Ber- on state behalf appears concerning special testifies the at- Segal, Esquire, ... devoted nard G. the appearance witness’ fact the to the fact that number of Califor- tention any testimony voluntarily until such time or re- resigned substance of nia had proceedings investigation by the of the Board’s the Com- as record under tired while public.” Cal- are made available the He remarked that under mission. also complaint filed is practice ifornia when parties appealed. All Plaintiffs Commission, “investigations, its with the allowing contend the court erred that deliberations, case on the and conclusions comple- the transcript course, secret, except, if completely proceedings tion formal appealed is decision Commission’s nonparty restrictions on witnesses violate Ber- Supreme Court.” Statement of guarantee speech. of free the constitutional Judiciary Proposed Segal on the nard G. argues The Board Preparatory Committee Article before requirement appropriate to the Board’s Pennsylvania Con- Constitutional for role, news-gather- only slight impact vention. ing, and federal constitu- is consistent with Dickinson tional standards. Dean Laub of the School Law, list- judge, former wrote an article I. against the fea- ing arguments for and proposed. He plans the various tures of response need moderniza- plan noting, un- constitution, Pennsylvania referred to California called tion its “confidentiality procedure der state’s Although in 1968. a number a convention matter is referred until the organization of state maintained changes As a for decision.” principal Supreme proposed, the government were system, possible the California drawback to presented delegates was the item potential for abuse The he listed the judiciary article. preparation of a new an inde- power conferred on investigative ultimately proposal, convention submitted pendent agency. He also supreme discussed criti- The state reviews the plan may cism of the followed in Board’s record and New York receive additional that, Following evidence. may the court because no assurance discipline order Laub, recommended Issues confidentiality. Before Board, may impose a different measure of Judiciary Committee discipline, exonerate the accused Convention, Pa.B.A.Q. Constitutional judge. papers “All proceed- filed with and ings before Board shall be confidential delegates Materials submitted to the dis- upon being the Board with the greater pros in even cussed detail the Court, the record shall lose its confidentiality in proceed- cons of filing confidential character. The pa- Removal, Suspension, and Disci- pers ings. giving with and the of testimony be- in, pline Judges, reprinted The Penn- privileged.” fore the Board shall be Pa. Convention, sylvania Constitutional Ref- V, 18(h). Const. Art. § Judiciary. erence Manual No. 5: The Implementing legislation consistent with Woodside, Pennsylvania also Constitutional language the constitutional was enacted Law, (1985)(The 433-38 author is a former and codified at 42 Pa.Cons.Stat.Ann. judge Pennsylvania appellate and was a seq. (Purdon 2101 et 1981). In accord- § convention). delegate to the directive, ance with a constitutional presenting plan In- for a Judicial supreme court drafted proce- rules of quiry and Review Board to the convention for the dure Board. Scranton, vote, for a W. William Chairman Judiciary of the Convention’s Committee II. governor Pennsylvania, and a former of Certain features of this case discussed urged adoption. He if the stated that parties the in play part their briefs no in

posal approved it “a were would be tremen- today’s Initially, decision. we note that step people the dous forward for of Penn- although practice the earlier was sylvania judges as for the well as of same. to file its record in state court protects It and at the same time charges some cases where the were dis- changes changes missed, makes where are neces- authoritatively it has now been es- Journal sary way.” in the finest kind of per- tablished that the state constitution Convention, Constitutional filing only mits discipline Febru- where has been of 29, 1968, ary page 1374. recommended. The Coalition does not Review now prior practice contend that the Board’s convention materials thus demonstrates consistent with the state constitution. The question was ac- recognized district court the state’s con- tively preparation considered in the of the provision struction of its constitutional constitutional amendment. binding courts, agree on the federal and we adopted by finally As affirmative vote of with that determination. state, people the constitution Additionally, apparent it should be that provides composed for a Board of five publication since there has been of substan- judges, lawyers, laymen. two and two It portions hearings, tial of the Larsen complaints reports receives or and makes proceeding particu- merits of that are not investigations. preliminary After further pertinent larly here. The case before us is examination, may order a hear- moot, legally realistically but what is at ing and direct the attendance and testimo- procedure in stake is the Board’s future ny hearing, of witnesses. “If after cases. therefor, good finds cause it shall Court the sus- recommend The obvious must also be stated. The removal, pension, discipline, compulsory alleged or Coalition’s claims are based on an access, publication. justice judge.” right right Pa. not a retirement 'V, Although 18(g). both have their roots in the First Const. Art. § Amendment, Cir.1984), principles are doctrinal- Coalition maintains n discrete, may right ly precedents one area constitutional access is where a exist, “presumption open- found indiscriminately applied the other. be presumption, This ness” is created. right general, publication In is the contends, places the on burden two, instances, Coalition and in most broader of the justify restrictions access constitutionally pro- publication may not be governmental inter- showing “compelling though particular even access to hibited narrowly est tai- be denied. New may properly [which restriction] information Newspapers Globe Co. lored serve.” States, v. United York Times Co. 403 U.S. Court, 596, 607, Superior (1971) L.Ed.2d 822 L.Ed.2d curiam). (per co-extensive, rights All of access are not issue us is not whether the before however, may granted and some be at dif- prohibits the Amendment state from First stages assuming ferent than others. disci- barring public observation right postulate we need not Pennsyl- stages. plinary proceedings at all span as that in civil and crimi- as extensive provided for disclosure but has vania has such, guided nal trials as but rather discipline limited it to the situation which unique history and function of the and the record has been recommended Judicial Review Board. Consequently, been filed with the court. decide, assume, do not that there is

we Newspapers and the cases de- Richmond discipli- a constitutional cided in its wake stressed the tradition stage. at some nary proceedings England and then open trials later Rights Bill of colonial America. Since the court, argument counsel before the adopted “against backdrop of had been for the Coalition conceded “the most being presump- long of trials difficult issue is the issue of where tively open,” 448 U.S. process of access attaches the First the Court concluded struggled with this issue.” Indicative prohibits “government the Amendment difficulty is of that the Coalition’s retreat summarily closing courtroom doors original position that was from its access long open public the at which had been to charges proceedings on required to “all adopted.” the time that Amendment the Board has determined not 576, 100 Id. at at 2827. obviously or unfounded.” The frivolous plaintiffs’ brief at 6. That would have defining right But cases a the access permitted of informal action disclosure best, are, at of limited usefulness to trials private reprimands the as and Board such fundamentally differ- in the context of the in lieu requests resignations for of formal procedures judicial disciplinary ent hearings. present conten- Coalition’s proceedings, boards. These administrative contemporaneous should tion is that access trials, and civil unlike conventional criminal point commence at the where the Board openness. long history a do not have charges against judge. fact, issues formal Recognizing points this the Coalition open removal in judicial to time honored right it Although assume a we hearings. impeachment might time in not attach at the same it does point other contexts and certain convention Had the state constitutional urges By analogy us impeachment here. replace Coalition traditional acted to establishing a First Amendment the cases substitute vehicle like with a see, e.g., trials, Board, ques- criminal a closer Inquiry of access to and Review Newspapers Virginia, Inc. v. pro- to the successor Richmond public tion of 555,100 is presented. But it ceedings 65 L.Ed.2d 973 would be functions are intend- (1980), to extend clear that the Board’s and this court’s decision replace the In- trials, supplement rather than Publicker ed to to civil the rationale discipline: (3d judicial im- dustries, Cohen, historical methods Inc. v. 733 F.2d Forcing judicial proceedings for review into peachment and removal conviction V, 18(h), 18(1); procedural mold Art. an older criminal would crime. Pa. Const. § Discipline, 84 Dick.L. stifling ability on a see also Judicial have a effect state’s largely solving prob- in It was use creative methods Rev. 449-52 quite lems. It is whether recognition that these traditional methods uncertain ineffective, partly judicial discipli- have chosen are be- would cumbersome nary openness, spurred program imple- able to cause of their have been ment in the of the confidential- constitutional convention conceive the one absence ity provision. procedure. The Coalition has failed to disciplinary new urges show that the of access it is so Against “presump- background, this compelling as justify the restriction on openness” from the gleaned tion the state’s freedom of choice. Richmond surveyed trials in of criminal Rather, judi- beyond in Newspapers goes lacks force. The Coalition tradition when proceedings, argues disciplinary what tradition the “structural values” of cial only at a later the First are public access Amendment served sub- is favors there proceedings stage process. temporally jecting A based of the Board to stranger greater public concurring right is to the law. For exam- access. In his no Newspapers, Richmond supports secrecy opinion ple, Justice tradition jus- in the criminal wrote that the First grand jury, entity Brennan Amendment system is embodied more a commitment free to which the Board most than tice expression Similarly, conferences be- for its own sake but included a akin. sidebar government. Falling are lawyers trial con- “structural” role tween although they concept within is the notion temporaneously confidential appear part transcript. properly must be informed order may later as Gurney, States v. democracy to survive. See United F.2d (5th Cir.1977). The Coalition contends choosing carrying assignments, performing out its is point at which formal governmental charges stage when function. The ceedings public, should the Coali- an interest information about con- become judiciary consequently analogy crimi- duct of its is tion uses an with traditional procedures beginning with the indict- entitled to assurance that nal discharging As re- properly its duties. ment. It would treat formal United States Smith equivalent of noted in cently before the Board as Co.), (Appeal the Patriot News F.2d proceedings. trial pre-trial criminal (3d Cir.1985), values analogy faulty structural This because recommend, pun- grant- in the decisions impose, only been a consideration cannot but trial, ishment, ing right of to and even some in its functions are a that sense pre-trial proceedings. States v. United grand jury. Only of the similar to those Cir.1982). Criden, (3d power has the 675 F.2d 550 supreme court to state discipline criminal field a just as in the argument alone The “structural” cannot power sentence. has the however, day, it carry the because has not of, to, independent developed and unrelated

It be said that Board’s recom- indictment, authority historical antecedents. The re- has the effect an mendation by plaintiffs must notion lied on be viewed in the The traditional conviction. target applies in trial context which it was decided—the protection for non-indicted long disciplinary process which common law tra- setting. equally well openness. accept For court to grant the accused dition of Board’s rules That the of the First procedural rights than are the structural considerations more extensive to the circum- grand Amendment without heed subject jury to the allotted they are invoked would stances which investigation does not undermine analo- unjustifiably expansive interpre- lead to an gy- 474 Reporters 2199, tation. See In re (1984), Committee S.Ct. L.Ed.2d 17 the Su- Press, Freedom the 773 F.2d preme “pretrial deposi- Court stated that

for (D.C.Cir.1985). Brennan, Justice an interrogatories tions and are not theory advocate of the structural of the trial,” components according- of a civil Amendment, First has cautioned that “the ly, placed discovered, “restraints on but not protection theoretically stretch of this is yet admitted information are not a restric- Newspapers, Richmond endless.” traditionally public tion on a source of in- (concurring U.S. at 100 S.Ct. at 2833 2207-08. It bears formation.” opinion). Consequently, right to know noting that the Seattle Times case upheld “must be invoked with discrimination and trial court ban on dissemination of informa- Id. temperance.” tion, prior a form of restraint which is not permitted. often course, arguments, The structural legitimate underpinnings constitutional for The Coalition does not now contend that right publication, they do not all activity open should be mandate access. Chief Justice Warren public. If question the access is envi- must have envisioned such contentions stretching sioned as a line from the ex- when he wrote: completely open proceedings treme of “There are few restrictions on action ones, completely closed we find that each by ingenious which could not be clothed party position has taken a somewhere argument garb of decreased data the center. The battle here is not at the example, prohibition flow. For extremes, ground. but in the middle entry unauthorized into the White House parties The posi- have staked out their opportunities diminishes the citizen’s area, tions in that arguing gather might information he find rele- proper only access is as mandated opinion way vant to his the coun- constitution, and the Coalition advo- run, try being is but that does not make cating point believes that entry into the White House a First requires the First Amendment access. The right. right Amendment speak The point specific Board’s demarcation publish carry does not with it the fixed, position whereas the Coalition’s right gather unrestrained informa- rely somewhat selective and must on rather tion.” vaguely concepts defined in decisional law. Rusk, 1, 16-17, Zemel v. 381 U.S. 85 S.Ct. earlier, delegates As noted 1271, 1280-81, 14 L.Ed.2d 179 state constitutional convention confronted applied Court has this limita- question begin. of when access should tion even cases where does resolution, Their presently which is under an gaining interest information— attack, knowledge was arrived at full example, attempts special to establish a competing concerns. prisons of access to have been re- See, KQED, e.g., Houchins v. buffed. plaintiffs’ appear contentions to be Inc., 438 U.S. 57 L.Ed.2d primarily based desirability grant- Procunier, (1978); Pell v. ing argument earlier that influ- (1974).2 41 L.Ed.2d 495 enced some nineteen Pennsyl- states. But litigation setting, twenty-one Even in the vania and other states have de- Seattle subject liberately point access is to limitations. In to fix chosen of access Rhinehart, v. 20, Times Co. 467 stage.3 104 at a later Interestingly, proceedings 2. deliberations of the federal could have been ratified if the open public. the convention had Constitutional Convention in 1787 were con- been O'Brien, See The First despite strong disapproval Amendment and the Pub- in secret ducted Know”, 579, "Right Hast.Const.L.Q. lic’s to 7 592 of Jefferson. Madison who took voluminous (1980). permit publication during notes would not questioned lifetime. his Commentators have Begue, Always 3. See Shaman and Silence Isn’t present whether constitution in its form Golden, 755, (1985). Temple L.Q. 58 756

475 instances, case, through we find least in some careful- circumstances In the attaching rest, presumption validity legislation. ly For the we drawn provi- legislative and constitutional rely, system state in to must as so often our weighs heavy. See Clements v. must, pull sions tug political on 2836, Fashing, 457 U.S. 102 S.Ct. Society.” forces American (1982). presump- 2843, 508 This 73 L.Ed.2d case, a In this we have state constitution- the courts of their does not relieve tion addressing provision, precisely point, al independent inquiry make obligation to an tug pull as a result of the arrived at stake, rights are at First Amendment when political forces. Federal courts should Communications, Inc. v. Vir- Landmark a state’s evaluation of structural overturn 843, 1535, 829, ginia, 435 U.S. 98 S.Ct. egregious in the absence of cir- concerns 1543, (1978), it re- 1 does 56 L.Ed.2d presented Here we are not cumstances. up- determination be quire that the state’s single acting the fiat of official in a with a transgress is found to a clear held unless it fashion, discretionary but with a constitu- addressing In prohibition. constitutional provision enacted in con- tional the Chief Justice admon- claim IV, formity Article 4 of the federal § is “confuse what ished courts guaranteeing constitution each state a re- ‘desirable,’ ‘expedient’ with what ‘good,’ See Bauers government. publican form constitutionally the First commanded is Heisel, 581, (3d 361 F.2d 588-89 Cir. con- To do so to trivialize Amendment. 1966). adjudication.” Houchins v. stitutional 1, 2588, KQED, Inc., 13, 438 U.S. judi- The notion that the effectiveness of (1978) (Opinion 57 L.Ed.2d 553 disciplinary depends large cial boards C.J.). Burger, confidentiality unique is not extent on Pennsylvania; the idea has been almost particularly burden is The Coalition’s accepted. Landmark Com- universally the concerns of heavy here because munications, point up to the have been accommodated (1978), them be 56 L.Ed.2d the state has determined confidentiality: compelling advantages of outweighed by more interests. listed four Press,” lecture, “Or of the In his oft-cited Encouraging filing complaints; 1. n (1975), Justice Stew- 26 Hast.L.J. Protecting judges from unwarranted 2. said, art complaints; no constitutional “There is Maintaining judi- confidence 3. particular government in- have access avoiding premature an- ciary formation, require openness or to from com- groundless nouncement bureaucracy [citing Pell v. Procuni- plaints; and knowing public’s interest er\ Facilitating 4. the work commis- protected by government about by giving flexibility to accom- sion Press, a Free but the guarantee of through voluntary plish its mission it- The Constitution tection is indirect. resignation of offend- retirement or a Freedom of Information self is neither ing judges.4 Act. nor Official Secrets Act Ct., Superior also Mosk v. Constitution, words, 25 Cal.3d other es- “The P.2d 1030 contest, Cal.Rptr. not its resolution. tablishes resolution, may provide a at Congress Only confidentiality, equally such concurring opinion, clear. Justice Stewart his determined, importance protect upright of confidentiali- will State has commented ty disciplinary process: unjustified "There same harm and higher governmental hardly interest airing could in Com- insure the full and fearless time judi- quality of its a State’s interest than ciary. Virginia’s every complaint judi- proceedings mission in maintain- derivative interest 848-49, 435 U.S. at cial misconduct.” ing of its Inquiry seems and Review Commission Judicial possibility judges ought The “protecting would be ha- measures to be taken in See judicial system disrupted judge publicity.” from malicious rassed and Sess. 16 re- S.Rep. Cong.2d open hearings No. 96th the event of before a printed in 1980 U.S.Code Cong. & Ad. inquiry illusory board has not been an con- Approval News of the ratio- California, adopt the first to a com- cern. employed by nale the Coalition here would judicial discipline, mission-form of included inescapably holding lead ato that the confi- provision assuring a constitutional confi- dentiality provision of the federal statute is dentiality filing until 10J, also Rule also unconstitutional. See supreme the state court. The California Judicial Council the Third Circuit. Be- provided Commission the model for the cause the federal statute is not at issue including its confiden- here, however, pursue we need not discus- Frankel, tiality requirements. See Remov- sion of that ramification. Judges: al Tackles an Old California Problem, 49 A.B.A.J. 166 The in- The district court observed that there is concept tuitive wisdom of that was con- special protection no federal constitutional experienced by firmed the near disaster given judges. criticism That Supreme undoubtedly California Court when confi- publication true con- text, dentiality nothing concerns were brushed aside and in the state constitutional charges against provision its Chief Justice were bars dissemination of information Cameron, See public. press Indeed, Cali- heard which the has received. publication of Hearings Trag- transcript the Larsen in this fornia —a edy That Should and Could Have Been See also Land- point. case illustrates that Avoided, (1980); mark. Const.L.Q. 8 Hast. Mosk, Chilling Independence— Nevertheless, the state has demonstrated Experience, West.N.Eng. California in preserving substantial interest limited (1980); Tribe, Trying L.R. California’s confidentiality. That interest rests not

Judges Open on Television: Government only reputation on the judiciary as Intimidation?, or Judicial 65 A.B.A.J. judges institution and who have been (1979) (“Gallup Poll Justice at proved culpable, accused but not but also Worst”). its flexibility on the need for so that the Board may efficiently accomplish purpose. article,

In his Professor Tribe describes disciplinary proceedings practice, it has been demonstrated “[protection vitally encourage needed to one of most effective methods candor, collegiality, courage po- meeting problem judge —both of the unfit protection litical and needed to remove him from the voluntary bench intellectual — judges for the benefit of but for resignation. Experience retirement or society benefit of as a whole.” 65 ABA judges prefer shown that some would operation J. 1179. The effective resign undergo complete rather than for- concern, judiciary is a matter of serious one hearings. Pennsylvania mal has concluded openness. suffer from much too. if confidentiality provisions were effect, judge might the accused feel noteworthy disciplinary too that the It is compelled seek by requiring vindication procedures judiciary for the federal enact- hearing.5 In the state’s view the by Congress provide confidentiality. ed gain would lose more than it would in this 372(c)(14). 28 U.S.C. The Senate § eventuality. explained its belief “that Committee confidentiality provision establishment objection say Nor is it a valid possible premature injury avoid confidentiality provision gives will more fa- judge,” reputation specified and that gov- vored treatment than other That, however, recognize We that a number of states have does not demonstrate that Penn- despite sylvania’s faulty to allow earlier access chosen ing its inhibit- evaluation is or that it is uncon- encouragement resignations. effect on the stitutional. reality plaintiff The court also When officials. is failed. Biddle ernmental subjected discipli- appeared such before the his re- judges are counsel being fa- procedures; rather than marked nary singled they have been out for more

vored posi- “MR. KLEIN: And it is the Board’s counterparts in oversight than their rigid tion, it, pre- I take that Mr. Biddle is branches.6 legislative and executive the disclosing any way cluded his Di- Markey, The Delicate generally testimony appearance own before Ethics, 101 F.R.D. chotomies of this Board. [Board Member] assuming right summary, even JUDGE Absolutely MIRARCHI: specifically not an issue we do [Board Member] decide, point at which determination Absolutely.” MR. RACKOFF: requires balancing overriding it becomes acknowledged The court district of the state’s concerns those Board’s was a re- prior mandate form are disclosure. The state’s interests “justified straint but found the order to the problem of a weighty, its resolution serious confidentiality the justi- extent that rule is unreasonable, is and the Coalition’s not F.Supp. fied.” 579 at 217. The de- court claim, arguably although presenting desir termined that there was a valid inter- state alternatives, supported his able insisting secrecy est on witness until In these circumstanc torical antecedents. time the Board’s record was filed with es, demonstrate the Coalition has failed to supreme court. proce unconstitutionality of the state dure, finding plaintiffs and the district court’s The claim of the individual phase Amendment is not warrant this of the case is based on First violation speech, simply of free ed. broader Consequently, we must access. be less Ill Any prior deferential to state interests. expression on restraint comes enabling The state constitution and presumption unconstitutionality.7 with “papers provide both statute Organization a Better Austin v. proceedings before the Board shall be for Keefe, proce- The rules of confidential.” Therefore, (1971). L.Ed.2d 1 contempt regarded it state that dure equation of the restrictions district court’s subpoenaed any person to in of court “for a placed on witnesses with the limitations on way confidentiality of the inves- breach applying access must not be read as participants All shall conduct tigation. Analysis standard in instances. same both the confiden- themselves so as to maintain distinguish the situ- of the factors that two proceeding.” subpoena tiality be ations must observed. plaintiffs individual contained served following “By direction of statement: Landmark, exam- Court the Constitution grounds ined the any ceedings disclo- confidential and procedures. Virginia judicial disciplinary proceedings shall consti- sure outside validity, never- Assuming the court contempt and actionable.” tute regulation could theless held not affect publish appeared newspapers’ right to information reporters before the When independent from an quash subpoenas obtained moved to they Board carefully noted that the A motion for source. request was denied. this stranger to the newspaper was a Commis- supreme the state expedited appeal to principle, provocative Pennsylvania, proceedings For a discussion 6. We note that Restraint, Jeffries, Rethinking 92 Yale disciplinary see Prior lawyers’ similar LJ. 409 confidentiality provisions. Pa.R.D.E. 402. reporter, participants in proceedings. employee, plaintiffs No were the Board’s sion The situation is also unlike paper proceedings. been representative or before, plaintiffs by, appeared Times did not seek subpoenaed or the Seattle pro- at 837 to avail themselves the Board’s n. Commission. clear, reporters compelled The were The court made there- cesses. at 1541 n. 10. testify fore, appear and on a matter that did not it was confronted with a restraint personal As publication. affect their interests. counsel on plaintiff’s posture agree, the individual is Times, hand, In on the other Seattle grand jury like that of a much witness. imposed newspa- the defendant ban was on scope of the sought to disseminate information The Board’s rule as well as per that through court’s that of the district court’s order which re- it had secured own any testimony” fers to the “substance of discovery process. The trial court issued publication entirely important clear. But it protective enjoining are not order data, allowing only recognize use that the order was entered in specified its terms, By conjunction requiring with the directive purposes of trial. the order gained by Board to file its record with the state court apply not to information did every proceed- in which through means other than dis- instance formal defendant Hence, ings were conducted. the district covery. court’s restraint on a witness would last Supreme Court affirmed the trial The only filing. until that noting that the First Amend- order court’s prohibit not all restraints on Under state law the Board will not file ment does speech expression, “freedom of does not the record until unless it recommends Therefore, speak any disciplinary action. comprehend the on sub- when charges, any time.” at 2207. A Board dismisses its record will ject at filed, litigant no First Amendment to never be and the restraint on the perpetual. only information made available for witness will be The district publish suit, contemplate purposes trying impor- his and an court did not a restriction of prohibition was that the such a duration. tant consideration gained extended to information disclosing The curb witness’s tes- through Finally, that means. the Court timony applies to information obtained privacy concluded that considerations and from sources outside as well as inside the proper functioning discovery court’s short, person having any Board. In prevent justified proceedings to abuse knowledge judge, about the conduct of a restrictions. otherwise, might favorable or be forever speaking, writing, publish- Corp., from Rodgers v. United States Steel barred Cir.1976), (3d ing if F.2d we ex- he testified about that information dictum, the Board. find no inter- pressed a similar view in but held before We state enough prohibiting strong justify sweep- counsel est such a protective that a order ing discussing material an exhibit at- measure. permissible. deposition was tached to impose any does not such applied to in- protective order Because appear prohibition on witnesses who before counsel had obtained from formation that grand jury. They permitted to dis- through the court’s than means other testimony although own close their the tra- extent, decided, cess, the re- secrecy par- applies ditional veil of to other impermissible. To the same straint ticipants process. 42 Pa.Coris.Stat. effect, New York v. United see State of (1980); November, Ann. 4549 Re § Co., Refining 771 F.2d 796 Metals States Special Investigating Jury, Grand 299 Pa. Cir.1985). (3d Super. 445 A.2d 1260 This imposed by procedure is consistent the federal restriction 6(e)(2), practice, Fed.R.Crim.P. and its from those considered see differs here Here, Landmark, application judicial disciplinary proceed- unlike preceding cases. during Therefore, substantially impair appearance. ings would regulation permit Board’s must be function. read to witnesses, discretion, at their to disclose the extent that the re- To testimony of their substance before the prevent improper quirement is intended to Board. defamatory publicity, protection other provides Accordingly, constitution the order of available. the district vacated, will testimony privi- Board court be and the case will be that before the is therefore, witness, may entry remanded leged.8 A for decree in conformi- invoke expressed ty opinion. with the views in privilege as to an for this a defense action speak If chooses defamation. a witness BECKER, Judge, concurring Circuit in hearing, a Board the confines of outside part. however, questionable it would seem apply privilege would to that whether join by majori- I in the result reached Proxmire, statement. See Hutchinson ty and III of its opinion. in Part I dis- Ill, 2675, 411 443 U.S. 99 61 L.Ed.2d S.Ct. however, agree, any that there is need to reason, (1979). may For that witnesses right majority assume a of access as the in their best interests not to find it own does, and to determine then whether the testimony. divulge their right Rather, is overridden this case. I believe there is that because no tradition or We conclude that to extent the history of access to the documents under regulation and the district court’s Board’s consideration, simply right there is no prevent disclosing from order witnesses them, access to and that the court should testimony, their own those directives run so hold. as impermis of the First Amendment afoul They prior party For a to establish a sibly broad restraints. are not constitutional right things: it totally invalid however. confidentiali must show two (a) (b) requirement openness, and ty impor- is reasonable be tradition of prevent per insofar tant values that be enforced as it would functional would served member, son, employee, by Press-Enterprise Supe- access. whether Board Co. v. counsel, Court, 501, 819, disclosing proceedings 104 from rior 78 (1984); taking place Newspaper Board. L.Ed.2d Co. before the The same 629 Globe Court, applies Superior 102 limitation witnesses with the ex v. 457 testimony. The relevant ception of own The state L.Ed.2d grand jury inquiry in this historical here is whether there is a respect, interest as strong openness respect to the setting, sufficiently support tradition of (the Inquiry Review such ban. Board’s) when it after a for- records votes may, although It follows that witnesses against hearing charges mal to dismiss the choose, they if their own testimo- disclose judge investigation. under they may that of ny, not reveal another dem- they may testify. whom hear Nor Examination of the historical record witness open- they free to of onstrates that there is no tradition of disclose comments respect members that are overheard ness with to such records.1 Of the or staff Mann, openness doc- In Owen v. 105 Ill.2d 86 Ill.Dec. tradition of associated with these uments, (1985) believing apparently long 475 N.E.2d the Illinois so judge suing attorney held that legitimate purpose, access would serve a there copy complaint libel could obtain a was a to such access. First constitutional judge lawyer discipli Inquiry and Amendment Coalition v. Judicial nary proceedings. complaint was found to (E.D.Pa. F.Supp. Review subject confidentiality provision 1984) ("A governmental public restriction on constitution. press about matters access to information presents a First Amendment concern regard worthy of while It is note in this question.”). J.) (Poliak, district' found a access, it did not whether there was a consider above, fifty-three cases decided Board on Although, as noted closed. up merits to June 1983 the Board one-half the relevant constitute six cases charges in twelve of them.2 dismissed the to them as history, Judge Adams refers us, cases is the one before One “simply exceptions” mere to an “overall by now well-known. In whose pattern” openness. Id. 482. Aside cases, remaining eleven six of the giving meaning new adage to the old Board did not file its records the Su- rule,” exception proves that “the preme The records therefore did Court. position has little to recommend it. The remaining public. In the five not become pattern purports identify was honored cases, records, the Board did file its but in more often the breach than otherwise—it apparently the Board had three of them pattern was no at all.3 The six cases initially decided not to make the record exceptions therefore cannot be trivialized as changed its mind because existed, pattern to a that never but must be justices joint one of the district under three given in impartial their due examination trying prevent investigation was killed to a of the history. whole relevant Such exami- investiga- hold-up around the time of the nation results in opposite a conclusion that filed record in the tion. The Board Judge pattern of Adams: there was no justice’s Supreme Court to clear that name openness tradition of here—far from it. Thus, memory. in and two of the relevant cases did the Board decide twelve Judge fact Adams also believes that the public to make its records absent extraordi- impeachment proceedings have histori- that nary conditions. open public to the is relevant to cally been to me that this “tradition” is It clear openness to there is a tradition of whether im- not sufficient to sustain burden Board documents and records. Concur- Any posed by Suprerhe Court. other disagree. I 485. and dissent rence nullity the tra- conclusion would make a history of explains, majority theAs openness requirement. Judge Ad- dition of rele- would be proceedings impeachment obviously disagrees, stating that “the ams been intended Board had only if the vant up to the time of this history of the Board become, a substitute be, in fact case, one, or had long though not a demonstrates Majority Opin- impeachment judges. proceed- openness tradition of in its ____” However, ings Concurrence and dissent at ion at 473. the record is clear supplement that Board was intended conclusion, reaching however, it, supplant impeachment process, not to Judge Adams discounts the six cases it has not become a de and that in Board did not recommend which the facto impeachment. The number were not dis- substitute for sanctions and the records only post justifications hoc for what was in sanctions in the oth- were 2. The Board recommended cases, forty-one practice. therefore filed the er and fact a "routine” Concurrence and dis- Supreme Testimony records of those cases in the sent at 482 n. 2. of Richard Although they McDevitt, Director, where became records. clear- the Board's Executive forty-one Judge Adams makes much of these demonstrates, however, ly that the Board was in cases, they clearly question to the irrelevant tragic cir- fact motivated the unusual there is a tradition of at hand which is whether openness case, of the and did not view the cumstances respect records of the with of the documents as routine: release investigations where the Board does not recom- charges justice accused of [was] district [A] dispute The Board does not mend sanctions. Erie, publicity in that received considerable whether) (nor upon to decide are we called panel and Board recommended dis- and the respect openness with there is a tradition interim, justice, in missal. In the the district investigations that result the records hold-up trying killed, prevent ... was shot and of sanctions. recommendation protecting his and in the interest of Judge implies that the release of Adams also memory the Board decided that the recom- justice investigation of the the records of the mendation dismissal should be stop hold-up attempting took shot while place was filed. good regard to concern for his without added). (emphasis App. at 162 memory, and that such considerations name or legal majority’s analysis has not declined as a re fer with impeachments availability of the Board.4 result. sult Cf. (Appeal States Smith United At the core of our differences on the Co.), (3d F.2d Patriot News dispute history. is a over access issue Cir.1985) (holding is a there majority that there is a believes “tradition particulars, despite their to bills of discipli- closed history, indictment have because brief Pennsylvania. nary process ...” This “skeletal,” particulars and bills of grown conclusion, however, is belied the fact expan played by more play the role once throughout history the state’s the cen- indictments). Thus, of im sive judicial discipline tral instrument shape analysis our peachment cannot impeachment, inception from its been practices of the Board. appropriate Nor, public proceeding. when the Judicial parties Although the have discussed (the Board) Inquiry and Review Board length practices of other states’ some strengthen discipli- created 1969 to boards, majority and the judicial review nary process, did it deviate from this tradi- them, such Judge Adams also refer to openness. Significantly, tion of provide evi- practices cannot the historical granted access to its formal necessary support the tradition of dence hearings majority in the vast cases Board. The openness of Court, filing transcript inquiry implies of the historical very nature adopt position and did not its current flexibility deciding that states have some present proceeding until the may open institutions which of their underway. was public. States can which closed legal analysis The correct here flows in histories and there- shape their own large measure from the historical record. their citizens fore differ about whether the standards set out Under Su- rights of access to otherwise identical Newspaper Globe Co. v. preme Court institutions. Such differences are elemen- Court, Superior 457 U.S. 102 S.Ct. Invoking system tal to our of federalism. (1982), and Press-En- 2613, 73 L.Ed.2d 248 institutions the histories of other states’ Court, Superior terprise v. case, flexibility; abridges the states’ (1984) L.Ed.2d 629 a tradi- opportunity to it denies coupled powerful openness, tion of with the its Board should decide for itself whether access, by public served functional values open closed be an or a institution. presumption of gives rise to a obligation first is to look at Our proceedings. Pursuant to that au- openness. Having done for a tradition of presumption openness may thority, tradition, so, I believe that there is no such only by showing a that clo- be overcome analysis I our should end there. and that compelling gov- “is necessitated sure not reach the several issues therefore do interest, narrowly and is tailored ernmental proof appro- to burdens of pertaining Globe, to serve that interest.” U.S. at majority priate standards of review in the 607, 102 S.Ct. at 2620. The Board’s con- disputed by Judge Adams. opinion and clear, here, it is cannot meet this stan- duct dard. ADAMS, Judge concurring in Circuit dissenting part.

part and Building on its conclusion that there has secrecy, majority majority’s in Part been a tradition of join I conclusion Coalition, in seeking reporters may not be barred determines III that access, infringement justify must disclosing testimony before the from confidentiality even choice of after a the issue of how- state’s Board. On dissent, that a conflict non-friv- ever, respectfully I dif- determination I because Merit, p. impeached Myth Barrister No. 3 Pennsylvania judge XIV The has been 4. No (Fall 1983). early century. Mundy, The since the nineteenth Al- punishment no was warranted. adversary hear- mined requires a full oleras and though the concurrence stresses ing; hold that the Coalition proceeds it not filed in six other cases in this case. Because the record has not so done sanctions, for Board did not call misreading where the approach reflects a majority’s suggests record, pattern sharp depar- the overall and a of the historical general prac- simply exceptions to its I controlling precedent, must dis- were ture from filing hearing. the record after tice of agree. characterization indicates The Board’s own I. pleadings before the district as much: court, past, that “In the Board declared proper perspective, it case in To see this Supreme with the record has been filed precisely provi- on the necessary to focus conducted, hearing has been after Pennsylvania Constitution sion the Board has recom- whether V, 18(h)governs the confi- issue. Article § imposition discipline.”2 mended the Inquiry dentiality of the state's Board; App. at 40. it states and Review “[a]ll before papers filed with proceeding present disciplinary Until the upon shall be confidential the board filing progress, practic- was in Supreme being by the board in the questioned. App. never been es had Court, record shall lose its confidential Indeed, filings, at the time of its the Board character.”1 acting pursuant “pow- it stated that was V, provided for in Article Section provision specifies under ers Nothing in this D of the Constitution of the record can or must Subsection what circumstances App. at 236. After the What is Court. Commonwealth.” be filed with filed, it is Board had heard the case Justice abundantly clear is that once it is Larsen, however, abruptly altered its the time of its longer no secret. From and, procedure, the first time founding through June usual opinion special counsel on sought merits disposed of 52 cases on the filing record in a case including propriety following hearing, six, recommended dis- where the Board had not present In all the record was case. opinion Court, on the basis of this Supreme cipline. and thus It was filed with the position Board came to take the proceedings filed includ- that the public. made The prohibited it the state constitution the Board recommended that ed 41 cases where charges against sanctions, filing a record where including four the court from where dismissed, recommendation, years 15 of judge as well the were did not follow the after contrary.3 practice to the the Board had deter- as five others where time, filing requirements. of the record was viewed as a rou- identical 1. A state statute sets out 1981). (Purdon tine matter. § 42 Pa.Stat. 3334 course, realize, position of that this 3. We “extraordinary” also labels as 2. The concurrence upheld by been the Board has Supreme five cases in the record was three of the Court, First Amendment Coalition v. dismissed, although charges the were on 129, Inquiry and Review 501 Pa. investiga- ground that one of the under 133, 722, (1983), 724 and that this 460 A.2d trying hold-up. prevent a tion had been killed binding interpretation us as an of decision is clearing judge were If the name of the deceased However, existing state law. under Globe and however, motivation, primary that could practice progeny, historical in we look to the easily accomplished disclos- have been without determining the existence of a federal ing all the record to that end that we consider the and it is Moreover, director the Board's executive three. 483, prior history. See infra at 483-485. “Hooking back in retro- testified that while time, by special the route which the At the same spect” did he "think were [these cases] present interpretation of the state Con- [the I don’t know what circumstances. words, be, majority's thinking came to the issue of stitution was at the time Board’s] filing established,” "authoritatively filing really App. raised.” at or not wasn’t ante at by special worthy counsel retained pleadings of note. The in the district 222. Like the Board's court, then, opin- interpretation in an suggests at the the Board issued this comment

483 part granting claim test in of access to voir II. proceedings). dire directly past practice of the Board recognized This has further Court criteria to one of the two used to relevant beyond of access criminal context. access, whether there a claim of resolve Industries, Cohen, Inc. Publicker v. 733 In Rich- openness. has been Cir.1984), (3d we F.2d 1059 addressed the Newspapers, Virginia, 448 Inc. v. mond public issue of access to civil trials. Sur- 65 973 L.Ed.2d U.S. Coke, veying venerable authorities as such (1980), Supreme held Court Hale, Blackstone, empha- Court general public have a press and constitu- “historically both sized that civil and crimi- right of to criminal tional access trials. presumptively open.” nal trials have been plurality opinion by Chief Justice Turning Id. prong at the second history demonstrating Burger relied on a Globe analysis, identified an im- presumption openness inheres in that a portant functioning role for access nature of criminal trial under judiciary government and the as a Id. at system justice. Anglo-American whole. We found that access in the civil Concurring, Justice Brennan 564-73. context served the same functions of a claim of access that resolution wrote Supreme Globe. Court enumerated must the First Amendment be evalu- under Id. Perhaps at most importantly, light weight factors: “The two ated emphasized “permits was that access practice” and an assessment of historical public participate in and serve as a check benefits, “specific structural the societal upon judicial process” and to ensure in the circumstanc- access value “constitutionally protected ‘discus- es.” Id. at 597. governmental in- sion affairs’ is an Globe, formed one.” Id. two-step analysis (quoting reaffirmed This 2618-19). 604-05, 102 S.Ct. at years two later Court, Newspaper Superior Globe We confronted access have also claims of 73 L.Ed.2d 248 U.S. which, judicial proceedings unlike (1982), the First Amend- which held that trial, counterpart criminal and civil lacked a prohibited mandatory closure rule ment cases, at common law. such courts have press denying the access to tri- greater placed reliance on structural involving testimony the minor victim als First values access Amendment served Newspa- Richmond Citing crime. a sex distinguished historical factor. Criden, Thus, pers, States v. that the criminal trial F.2d United Court noted (3d Cir.1982), press right of historically open we identified a been Globe, suppression hearing, pretrial public. to a general history of despite long absence of a the majority pro- at 2619. The then 102 S.Ct. openness. impor- “the Because relative of ceeded to evaluate the functional role procedure of of trial pretrial tance to that to trials. It concluded that it en- grown immensely has the last two hun- process, factfinding the fosters an hances years,” concluded “we do not dred we that system in our appearance fairness analysis think that historical is relevant permits partic- justice, and the determining there first amend- whether is a upon check the ipate in and serve as a pretrial right of access to criminal ment 606, Id. process. 102 Id. at 555. proceedings.” Enterprise also 2619. See Press Co. Court, in United v. Smith Superior States recently, More Co.), (Appeal Patriot News (1984) 776 F.2d (applying L.Ed.2d two- 78 629 constitutionally independent body,” Pennsylva- that it appealed The ion. Coalition power to review the Board’s did inde- did have Court. That court nia Thus, interpreta- interpretation. this definitive pendently V of the constitution construe Article rather, really law- deciding simply tion of constitution is one appeal; ruled the state constitution, agency. yer’s opinion, rendered for a client is "a under the state 484 (3d Cir.1985), protect “judiciary need to we that there exists between the

1104 held presumptive right complaints,” of access to a bill of ... from frivolous and the relationship particulars time, because of its close recognition that “at the same indictment, historically which has to the know that public must be made to its real public. Although been available to the McDevitt, complaints will be heard.” Re- “[bjills particulars, relative to indict- Pa.B.A.Q. 42 viewing the Review ments, history,” have a brief we noted (1970-71); Jones, 36 see also State of years in recent indictments become Commonwealth, Judiciary skeletal, particulars and bills of somewhat (Board (1974) Pa.B.A.Q. has func- perform large grown part have thus “providing tion of the as- originally played by the role indictments. surance that the conduct of at all addition, public 1111. In access to Id. at being policed____”). really levels is Thus the same societal inter- such bills “serves history up of the Board to the time of charging by access to the doc- ests served case, one, though long not a demon- Thus, particulars uments.” Id. the bill of openness strates a tradition of in its presumption to the same was held entitled ceedings performance consistent with the openness the indictment. disciplinary of its function. appropriate in- These cases frame the important inquiry More to the his- quiry reviewing a claimed tory functionally procedures similar de- inquiry entails review of of access. Comment, signed disciplinejudges. openness history and the func- both Right The First Amendment Access to by served access. In exam- tional values Globe, Civil Trials 51 U.Chi.L.Rev. After elements, ining guid- a court must (1984). analogue to the Board purposes ed of the First Amend- notes, discipline, majority as the is im- ment, and be sensitive to historical evolu- peachment and removal for conviction of a develop tion. Where new structures to ful- impeachment proceeding crime. An has played fill the role earlier other struc- always quintessentially “public been a busi- tures, guidance seek from the we must Black, Impeachment: ness.” A C. Hand- institutions, the earlier as in (1974). According majority, book Moreover, particular judi- Smith. where a however, analogy inapplicable be- proceeding gov- cial critical become a cause Board’s functions are intended “[t]he only recently, ernmental institution supplement replace” im- rather than place greater weight correspondingly peachment process. Ante at 472. the structural values furthered leading Examination of the debate as in Criden. V, however, adoption of the Article under- case, present In the the Board itself has cuts this assertion. Creation of the Board relatively history. Na- brief institutional grew recognition “[ijmpeach- out of a tionally, more than two-thirds of rarely ment is used because it has been organizations present-day judicial-discipline Laub, shown to be almost ineffective.” during came into existence the last 15 Judiciary Issues Committee Sinks, Before years. D. See I. Tesitor & Constitutional Conven- (1980). 19-27 Organizations Conduct tion, Pa.B.A.Q. Thus a began operation in Pennsylvania’s Board new method was needed. It is true that vary state schemes as to 1969. While the granted powers punish the Board was to proceedings stage the at which the board types judicial more diverse of misconduct general practice of the public, the become by impeachment, than could be remedied to file a Pennsylvania board has been punishment which was reserved for of Court, thus the and record with posi- criminal acts of office and breaches of public access after the Board has allow statutory duty. tive Id. at 397. Neverthe- hearing to recommend held a on whether less, pre-1968 regime, impeach- under the discipline. policy The Board’s formal primary means available for confidentiality adopted as a balance ment was the was

485 473, that, misconduct; afterward, and Brennan at as Justice disciplining judicial contrast, by by action the argued, right Board became the know “must be in- terms, primary the means. functional temper- and voked discrimination then, proceedings before the re- Board Newspapers, 448 ance.” Richmond U.S. Indeed, placed impeachment. there have 588, (concurring opin- 100 S.Ct. at 2833 impeachment no since the been ion). general propositions, As admo- Board created. they But unexceptionable. nitions are have accept Here, majority’s bearing Even if we we were little on this case. con- “replace- rather than “supplement” of label in sider the structural values of access ment,” moreover, would still com- we historically open proceeding, context of a prior history of im- pelled look to the sought the right of access attaches where of ac- peachment analyzing very point generally at the at which access proceedings in disciplinary cess to Moreover, granted. point has been this ap- Pennsylvania. To do otherwise would stage disciplinary pro- at a occurs teaching Smith. pear ignore ceedings panel has where a review found particulars There noted that bills frivolous, complaint to be and perform part come to years recent complaint has subject where the had by indict- initially served the function adversary hearing. the benefit full ment, fairly sup- seen “as so are now Thus, practical nor neither theoretical indictment,” id. plements terms does of structural consideration val- subject comparable of access. to a pose danger ues in this case discipline, any under char- Similarly, Board gather information,” “unrestrained very acterization, least come to has at Rusk, 1, 16-17, Zemel v. 85 formerly play portion of the role major 1271, 1280-81, (1965), 14 L.Ed.2d 179 must be by impeachment, thus served concerns the apparently factor ma- similarly open. jority. Ante at 474. assertion, then, The that be- majority’s One critical value furthered access is open proceedings in the cause the lack of respect “heightening public its role process, judicial disciplinary Coalition Globe, judicial process.” 457 U.S. at overcoming a presump- a burden bears at 2619. The facts this rests, believe, I on a tion importance dramatically case illustrate historical record. To- misreading of the gether, practice Pennsylvania and the of this value. As the Com- practice equivalent prior of its functional in a related monwealth Court stated support argument that his- the Coalition’s litigation, underlying nature of tory presumption open- comports with “allegations present matter included ness. racism, rampant vote-fixing, political ma- eccentricities, neuvering, personal and the background, Against we turn to the this unlawful, indiscreet, if use of the influ- analy- of the Richmond-Globe step second political sis, ence of office for the for consideration of the which calls [a Justice’s] These personal structural values served access. of his friends.” benefits overwhelmingly support presump- Subpoena values re Served tion access. Commission, Crime 79 Pa.Commw. (1983). The Com- A.2d that in some circum- majority asserts monwealth found matter consid- acceptance of structural stances “shaken continues to shake the Amendment of the First could lead erations in the administration of public confidence expansive interpreta- unjustifiably to “an M4 provision, justice ante this Commonwealth.” tion” of that constitutional Proceedings, Disciplinary disciplinary proceedings cess to were be- 4. When the Board, they provoked U.Pa.L.Rev. phia Inquirer Philadel- fore the heated reactions. Comment, Right to editorialize was led A First Amendment Ac- of 486 disposition ty). here deny public public

To to the Access would educate the access charges judiciary. reached a the Board and the they such once both about Comment, supra, stage may impression See well create an 132 U.Pa.L.Rev. at formal (1984). public A by based on 1183 informed that the Board’s “decisions [are] News- would partiality,” equipped be better Richmond bias or turn to serve secret 569, judicial system, on the at S.Ct. at 2823 as a papers, 448 U.S. 100 check an essen- C.J.); see Cri- opinion Burger, component government. our form of tial (plurality Globe, 556, den, 606, 457 See “paro- at or U.S. at 102 at 675 F.2d stem S.Ct. Subpoena, In re protectiveness.” knowledge 79 2619. As to chial 402, public press may at at 1060. Pa.Commw. 470 A.2d review its actions safeguard Completely proceedings may closed Board act as a or will bias suspicion prejudice partiality, public “breed and arbi- and enable the thus to evaluate trariness, performance spawns disrespect watchdog which in turn the Board’s of its Newspapers, Richmond judiciary, law.” 448 As for role. access to Board 595, (Brennan, J., will proceedings at 100 at 2837 enable citizens to evaluate concurring). stringent judges, set of eth- make more most effective decisions electing standards for would be time comes for re- ical elected officials when the or public per- electing especially limited worth if the is not This is appropri- them. being fairly judges that the standards ate in suaded are selects its Legitimacy large part by popular election. enforced. rests Note, Judi- public understanding. on opening Finally, hearings Board will like- cial Removal—Establishment ly enhancing more by make them effective Judges Pre- Commission Removal for integrity. Factfinding before Legislative Investigation cludes Judi- production, include Board and admis- Misconduct, 84 cial Harv.L.Rev. documents, and testimony by sion of wit- (1971). 1009 context, As in the nesses. criminal trial scrutiny important public discourage perjury A related but secured would benefit Newspa- val- other misconduct. See Richmond therapeutic access is a “community Press-Enterprise, pers, 508-09, ue.” at U.S. at 100 2823 448 S.Ct. at 823; C.J.) Newspapers, Richmond (Burger, (plurality); S.Ct. at Be- 104 Shaman and 570-71, Always Isn’t Silence Golden: Reas- gue, 448 U.S. at 100 at 2823-24 sessing Confidentiality in the Judicial (plurality). Allegations of misconduct Process, Disciplinary charged meting Temple L.Q. who are out provoke impor- often outcries. A Access justice would serve an verify agency purpose “security chance that a like tant testimonial Publicker, enforcing effectively the Board is ethical trustworthiness.” at 733 F.2d provides an rules outlet for such reactions. the Executive Board has

As Director strength of Given the these structural stressed, giving “there is real citi- value values, prac- the Board’s griev- a sounding zens for their board predecessor impeach- as the tices as well supra, McDevitt, Pa.B.A.Q. ances.” at process, pre- it seems ment clear that a sumption of access attaches to the Board’s demonstrably proceedings. majority Public access ad- To some extent also pur- point. at appears Although the First Amendment’s “core to concede this vances assuring point freedom one it likens the Board to pose of communication the Grand relating functioning matters Jury, to the body, secret ante at it also Newspapers, Richmond of access” to Board government.” “assume[s] (plurali- stage, U.S. at S.Ct. at some ante at publicly system exposed as a "been self-serv- whose foundations beset moral 14A, ing, ignoring, protection evidence May mutual socie- rot.” col. 1. perpetuation ty dedicated

487 is, majority favors the vast of cases—its decision is that “what tradition there states stage only at a in the final later and unreviewable. See First Amend- access this 473. Under latter Ante at Coalition, process.” ment 501 Pa. 460 A.2d view, apparently right of access at- power, result 722.5 As a of its hundreds it point at a the Board now contends imposed taches Board cases the itself what does, are recom- when formal sanctions sanctions, including “informal” ver- calls Supreme Pennsylvania to the mended admonition, reprimands, bal and letters contention, however, suffers Court. This resignations. solicited While the Board theory from the same defect as argues now are “consensual” closure, since, a as we there is tradition sanctions, this label should cloud the demonstrated, historically access was reality: underlying ability the Board’s hearings by granted formal obtain “consent” to such measures is Similarly, their outcome. regardless of large part predicated unquestioned on its grant- is impeachment proceedings, access ability punishment. to effect formal In- legislature which the to the trial at ed deed, Supreme has accepted Court convic- whether recommend determines time, Board’s a recommendation 90% the tion, conviction is regardless of whether practice apparently contemplated or not. recommended autonomy power, its start.6 Given representatives even of the Board have ac- only support offered other knowledged that it first as an inves- “sit[s] delayed point majority for its tigatory body, quasi-judicial then as a “temporally based theory its under McDevitt, body.” Pa.B.A.Q. 42 supra, at analogy: is right,” ante at an contends, majority proceedings, then, id., grand jury, Unlike but like the jury, grand to the akin” are “most Newspapers, trial in in- proceed- Richmond trial pre-trial than rather quiry procedures are a its Newspapers and ings in Richmond judicial factfinding” so, “mechanism argued, it is “because progeny. This decisionmaking,” legal forum for “initial impose, but recom- Board cannot (Brennan, at 2838 448 U.S. at mend, at 473. punishment____” Ante J., concurring), and thus are entitled fact, however, powers real the Board’s presumption openness under the same greater analogy considerably than are First Amendment. provided the protections suggests, and the correspondingly complaint subject of a III. grand stringent jury. before the more than exists, may Concluding grand Board con- a jury, Unlike course, hearings, designed complete the Court’s adversary does not full duct merits of the task. is not absolute. It on the Such reach a conclusion merely determina- if the state demonstrates that charges, than be overcome rather compelling closure “is necessitated probable cause. Where tion of interest, sanctions, narrowly tai- governmental recommend does case, decides lored that interest.” Press-Enter- retry the to serve does not at at 824 prise, basis of the 464 U.S. reject them on the to affirm or (1984) Newspaper, hearings. (quoting transcript Where the Globe of Board (1983)). complaint occurs in 102 S.Ct. at 2620 dismisses Board —as that, ("I (1973) concerning happy am note complaints elect- Of the first 3000 existence, citizens, by Pennsylvania years four of the Board’s [first] ed recommendations, App. disposed exception, but 41. of all have been its own without Court.’’) (emphasis upon favorably by 253-61. our acted added). Jones, See, e.g., State Judi- Justice Chief Commonwealth, Pa.B.A.Q. ciary in Smith, Here, however, 776 F.2d at 1112. complaint substantial. If a remains unre- solved, the Board cannot meet this standard. the Board then conducts a formal investigation, after which it decides wheth- major The Board offered three interests lodge charges er to requiring formal an that it contends are sufficient to overcome adversary hearing. during It is the investi- of access. The first is that confi- that, gative stage “the meritorious can be dentiality encourages filing of com- separated complaints,” from the frivolous plaints by providing protection against re- Landmark, 435 U.S. at 98 S.Ct. at quickly taliation. This interest be dis- 1539. The Board can use confidentiality as of, however, posed Pennsylva- since under bargaining chip to resolve some com- procedure, judge investiga- nia’s under plaints filing charges without formal lead- tion, person retaliate, likely most ing hearing, to a and it can further deter- already been informed of the name of the mine which complaints of the non-frivolous complainant by initial the time a formal sufficiently are substantiated to merit for- 129-30, 262, hearing begins. App. at charges. mal Although subject apparently not noti- fied of the identities of the witnesses to steps Once these completed, have been appear, complainant the disclosure of the premature the concern over disclosure of and complaint the nature of the will most complaints unfounded virtually vanishes. suggest likely often those to be called. Moreover, to the extent that any there is Thus, strong this interest is not a one once remaining danger of injury repu- unfair proceedings pass stage. the initial tation, may by answered a means is, other than confidentiality Two other suggested by rationales are dis- —that closure of majority: reputation transcript the interest in the full judiciary ceedings, including judges, and individual the basis of the decision flexibility negotiating This, the need for to sustain or charges. sanc- dismiss the course, flexibility tions. The interest derives from was the practice Board’s until the ability encourage the Board’s judges procedure, to time of this case. Under this resign voluntarily by offering every judge spare formally accused publicity them hearing. eventually See Land- exonerated would be vindi- Communications, mark Virginia, Inc. v. cated the simultaneous disclosure of the 829, 835-36, transcript. U.S. transcript 1539- Once the is com- then, plete, L.Ed.2d Given the longer the state can no justify resources, jur- limited and the fact that its its limitations on the encompasses many isdiction press public, and varied the as the district misconduct, held, types this inspect interest is entitled to transcript. one, important and unless it can main- rejecting the Coalition’s claim of ac- tain investigating while com- cess, the majority engages also in a bal- plaints, the Board has no other effective ancing of access interests confiden- preserving flexibility. means of interests, tiality but it never articulates the agree I also strong there is a inter- applies weighing. standard it to this With- protecting est in reputation citing out authority, it suggest seems to complaints. unfounded evaluating concerns, See Land- that in competing mark, at' balancing special the Board’s deserves def- declining But this interest exerts force as erence from this Court. Thus it states that concludes that complaint coalition has failed to show that the “[t]he worthy hearing. full step by right urges The first of access it is so compelling as Board in investigative stage its justify is to to the restrictions on the state’s dismiss frivolous claims. It then informal- choice,” and that ante at freedom of ly investigates further, winnowing “[fjederal out oth- courts should not overturn a claims, allowing er meritless judge state’s evaluation of structural concerns charges to comment on appear circumstances,” more egregious absence of “compelling interest” test set forth in respect, 475. With all due ante at analysis Globe. turns the constitutional approach is that once a The basic rule

upside down. Amendment, Ultimately, under the First exist, then the is found to right of access any attempt justify position the Board’s justify upon the state burden falls current must establish that its view of con- Globe, infringement. 606- necessary operation. fidentiality is to its Moreover, 102 S.Ct. at 2619-20. this, majority hints that it believes The see that a federal Supreme Court has declared 476-77, say it does not so at ante independent required to conduct an court is directly. The reason it does not should be justifications, the asserted ac- review of enough: years, clear for its first 15 cording federal constitutional standards. operated degree without that of con- Landmark, 435 U.S. at 98 S.Ct. at fidentiality, and there is no evidence that 1543. any problems Against as a result. shows record, necessity such a a claim of is ano- “presump- support application To malous indeed. legislative validity attaching to state tion provisions,” ante at constitutional and Fashing, v. majority cites Clements IV. 102 S.Ct. judges, instinctively As react decision, how- That L.Ed.2d 508 exposure, perhaps public because we know ever, majori- provides support little for the importance to certain with dealt an ty’s approach. Clements work, aspects of our such as decisional protection challenge to state constitu- equal context, secrecy In this conferences. public official’s abili- limitations on a tional goal worthy protecting. But we have no public another ty a candidate for to become general authority “protect the court as a held that in the Court office. judges mystical entity or the as individuals minority po- special burdens absence priests, apart or as annointed set from candidates, independent parties or litical community spared the criticism to and analyzed state’s classification should democracy in a other citizens test, rather a lenient rational basis under California, 314 exposed.” Bridges v. scrutiny.” demanding more “strict 190, 207-08, than the 252, 291-92, 62 S.Ct. 963-65, 102 at 2843-45. Thus (Frankfurter, at (1941)

Id. J. dissent- L.Ed. applied equal protec- “traditional legal support for the ing). There is no at principles,” tion id. that elected state officials who proposition long prece- entitled, line of developed Judge in a judges are happen to be contrast, case, by words, exemption the assert- dents. to “total from Poliak’s is conceded right, slings ed whose existence arrows which others and right F.Supp. First Amendment live with.” 579 majority, is a arena must majority points analysis, to no case 214. In the final what is most access. The today’s review in a decision is that in allowing regrettable for a rational basis about it; case, convincing any could other ratio- Amendment access nor the absence First exist, nale, example any it too will be seen as right access is found to once a protecting its own interests.7 judiciary infringement must meet decided, Indeed, proceedings should be majority to the federal concerned that seems might judiciary recognition upon access here also that the federal a conviction proceedings require applicable established for access to the be immune from otherwise should judges. Ante at disciplining federal standards. constitutional however, constitutionality system, federal Judge would not reach this issue and Sloviter Court; the histori- before this nor is not would notes, join how- in this footnote. She does not arguments in favor of cal and structural ever, would find it difficult to distin- that she of the non-elected be identical in the context involving guish between access to however, is, upon judiciary. the basis federal It involving judges. judges federal and those any claim of access of such considerations This case comes at a critical time judiciary. Judges at both KIICK, Kiick, Perri C. and receiving the state and federal level are Edward, Appellees, unprecedented scrutiny from the v. press public, and but also law en- CO., METROPOLITAN EDISON forcement officials. Prosecution of Corp., Public General Utilities and Bab- misconduct, unfortunately, has become Company, Appellants, cock and Wilcox result,

increasingly common.8 As a No. 85-5351. public needs assurance that it can continue rely independence impartiali- on the ty judicial that are the cornerstone of our SMITH, Smith, Terry Michelle system; it needs to know that the non-crim- Smajda, Appellees, inal mechanisms created to monitor functioning vigor conduct are and ef- Pennsylvania, fectiveness. Review GENERAL PUBLIC UTILITIES CORP., cry Board’s critics out that its Co., decisions Metropolitan Jersey Edison Cen- partiality self-protection. Co., based on Light tral Power & Nothing give Co., could more credence to these Compa- Electric Babcock & Wilcox charges fencing Co., than out the ny, Ray J. McDermott & and Cata- proceedings; nothing Inc., the Board’s could lytic, Appellants, No. 85-5352. effectively rebut them more than disclo- 85-5351, Nos. 85-5352. complaints sure where have been denom- States Appeals, United Court of inated the Board as serious. Third Circuit. Because I believe that the First Amend- Argued Jan. requires ment access to involv- ing complaints regarding non-frivolous Decided Feb. officials, high elected I would affirm the court, judgment of the district and order transcript hearing be made

public. GIBBONS,

Judges SLOVITER and join

MANSMANN in this dissent. 27, 1986, popular press Mississippi January from the week small 8A, 8. Accounts in the town. 26, 1986, January example, reflect the Today, editorializing col. 2. And USA growing prosecutorial alarm,” focus on the corruption “Judicial is cause for devot- Inquirer began judiciary. Philadelphia, the page ed a full to discussion of miscon- exposing publication im- of a series articles duct; it noted both the number of state court Bissinger city’s proprieties courts. See judges investigation under indictment or as well Biddle, In the Court: Politics and Disorder as the fact that three federal City’s System. Dealings Justice Private Beset allegedly ever been indicted for offenses com- January Philadelphia Inquirer. at 1A. bench, past mitted while on the all three in the reported Times on the col. 1. The New York years. January three at 10A. bribery judge impact of a federal on a trial

Case Details

Case Name: The First Amendment Coalition, Frederick J. Huysman and Daniel R. Biddle, in 84-1164 v. Judicial Inquiry and Review Board, in 84-1153

Court Name: Court of Appeals for the First Circuit

Date Published: Feb 27, 1986

Citation: 784 F.2d 467

Docket Number: 84-1153, 84-1164

Court Abbreviation: 1st Cir.