Two recent decisions address the confidentiality of judicial discipline proceedings – one about what commissions can prohibit others from disclosing and one about what commissions can be required to disclose.

Forced silence

Granting a preliminary injunction, the U.S. District Court for the District of Montana enjoined the Judicial Standards Commission from prosecuting a complainant for publishing a complaint he had filed with the Commission and the letter he received dismissing that complaint. Cox v. McLean, 2014 U.S. Dist. LEXIS 139341 (September 30, 2014).

A rule adopted by the Commission provided that every witness will be sworn not to disclose “the existence of the proceeding or the identity of the judge until the proceedings are no longer confidential” – which for dismissed complaints is permanently – and that violation of that oath is punishable as contempt.

According to the court, the plaintiff “became aware of actions allegedly taken by a Montana state district court judge” and filed a complaint with the Commission in early June 2013. (According to news reports, the plaintiff filed a complaint accusing a judge of ethical violations in the plaintiff’s dispute with his ex-wife over visitation rights for their two children.) The Commission determined that no ethical violation had occurred, informed Cox of its dismissal by letter, and reminded Cox of the confidentiality requirements. In response to a letter from Cox’s attorney, the Commission stated it would appoint a district court judge to conduct a contempt hearing if Cox breached the confidentiality of the complaint.

In a federal lawsuit, Cox alleged that he intends to seek the recall of the judge named in the complaint and to oppose the judge if he seeks re-election, and, as part of these efforts, to publish the complaint and the Commission’s letter dismissing the complaint but that he will not do so while there is a threat of a contempt citation. The federal court concluded that the plaintiff “makes a colorable claim that his First Amendment rights have been infringed” because he “wishes to criticize government officials and a government body for political reasons, but he is restricted from doing so by threat of civil or criminal prosecution.”

The court also concluded that “besides their conclusory assertion, Defendants make no attempt to justify the perpetual ban on Cox from publishing his dismissed complaint and the letter the Commission sent to him over one year ago.” The court acknowledged that “the reputation of a Montana judge, and the confidentiality of Commission proceedings, serves a legitimate purpose during an ongoing investigation.” However, it emphasized that rationale did not apply after Cox’s complaint had been “summarily dismissed by the Commission over one year ago” and was undercut by the defendants’ “argument that the fact of filing should be confidential even while the substance of the complaint can be disclosed . . . .”

Forced disclosure

Affirming the dismissal of a reporter’s complaint, the West Virginia Supreme Court of Appeals held information about complaints against judges dismissed by the Judicial Investigation Commission were exempt from disclosure under the state Freedom of Information Act. Smith v. Tarr, 2015 W. Va. LEXIS 12 (January 12, 2015).

In September 2012, a freelance news reporter sent a West Virginia FOIA request to the Commission for “the total number of [judicial ethics] complaints filed by year” against 27 circuit and family court judges identified by name. Subsequently, the reporter submitted a request for the same information for seven additional judges. The Commission denied the request, and the reporter filed an action for declaratory and injunctive relief.

The Court held that the information sought by the reporter fell within an exception to disclosure under the West Virginia FOIA for “information specifically exempted from disclosure by statute” because Commission Rule 2.4 provides that, absent a finding of probable cause, “the details of complaints filed or investigations conducted by the Office of Disciplinary Counsel shall be confidential.”

The Court distinguished a case in which it had held that State Bar rules that provided “all proceedings” of lawyer disciplinary matters, including private reprimands, were confidential public discipline was recommended for public discipline were “overly broad restrictions upon public access” that violated the open courts clause of the state constitution. “Rule 2.4 places significantly fewer restrictions on the public’s access to records,” the Court emphasized, because, unlike the bar rules, the Rules of Judicial Disciplinary Procedure “do not provide for private reprimands” and provide for public admonishments and public hearings on formal charges if a judge is found to have committed any unethical behavior. The Court also concluded that judges “occupy a markedly different role” in the judicial system than lawyers.

Lawyers are representatives of the public’s business, employed by individuals or entities based upon an intelligent understanding of the lawyer’s abilities, and the reporting of a dismissed ethics complaint poses no real threat to a lawyer’s reputation. Lawyers can defend themselves against such meritless complaints. Judges, however, are not in the same position. Judges lack the freedom to defend themselves publicly against all meritless complaints and to choose the cases or parties before them. . . .