|
JOHN
DOE, Plaintiff, v. STATE OF FLORIDA JUDICIAL QUALIFICATIONS
COMMISSION, Defendant
No.
89-6362-CIV
UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
748
F. Supp. 1520; 1990 U.S. Dist. LEXIS 13957; 18 Media L. Rep. 1433
September 28, 1990, Decided
September 28, 1990, Filed
CORE TERMS: confidentiality, First Amendment,
reputation, regulation, disclosure, unfounded, formal charges,
effective, confidential, disclose, manner restriction, free speech,
privacy, confidence, revealing, theatres, constitutional right of
privacy, enforcing, publicly, sufficient to justify, facilitation,
discouraged, plainly, silence, resign, public confidence, secondary
effects, summary judgment, probable cause, reputational
COUNSEL: [**1] James K. Green, Esq., Green,
Eisenberg & Cohen, West Palm Beach, Florida, for Plaintiff.
George L. Waas, Esq., Assistant Attorney General, State of Florida,
Tallahassee, Florida, for Defendant.
JUDGES: Stanley Marcus, United States District Judge.
OPINIONBY: MARCUS
OPINION: [*1521] ORDER OF FINAL SUMMARY
JUDGMENT
STANLEY MARCUS, UNITED STATES DISTRICT JUDGE
THIS CAUSE has come before the Court on the parties' cross-motions for
summary judgment. At issue in the case is the constitutionality of
Article V, Section 12 of the Florida Constitution in so far as it bars
the disclosure of the fact that a complaint against a judge has been
filed with the Florida Judicial Qualifications Commission
(hereinafter "JQC").
The suit was triggered when, in May 1989, the Plaintiff, John Doe, a
practicing Florida attorney, filed a complaint with the JQC against a
county court judge who allegedly discriminated in open court against a
person with AIDS. In response to Doe's complaint, the Defendant JQC
notified Doe that "pursuant to the provisions of Article V, Section
12, Florida Constitution, the fact that a complaint against a judge had
been filed with this Commission is confidential. . . . You should abide
by this constitutional mandate." Complaint at para. 6. This lawsuit
ensued [**2] as a result of Plaintiff's claims that
Florida's confidentiality rule violates the free speech clause of the
First Amendment. Plaintiff seeks a determination that Article V, Section
12 of the Florida Constitution is unconstitutional on its face and as
applied to this case; and that an injunction should issue enjoining the
JQC from enforcing it. The JQC has argued that the rule does not violate
the First Amendment as it represents a valid [*1522] time,
place and manner regulation, and that the restriction placed on
Plaintiff's freedom of expression is sufficiently justified by the
State's interest in maintaining confidentiality regarding the filing of
complaints against judges. Both sides have stipulated the basic facts in
the lawsuit and agreed that the cause is ripe for disposition on motion
for summary judgment.
I.
The following facts have been stipulated by the parties:
1. Plaintiff, John Doe, is a resident of Broward County, Florida. He is
also a licensed Florida attorney and consultant specializing in Acquired
Immune Deficiency Syndrome (AIDS) issues. He is also a former chair of
the AIDS subcommittee of the Florida Bar's Committee on Individual
Rights and Responsibilities, and a member [**3] of the
national American Civil Liberties Union's (ACLU) Task Force on AIDS. He
has published a law review article on AIDS and has lectured extensively
on AIDS law to members of the public and legal profession.
2. Defendant, Judicial Qualifications Commission of the
State of Florida, is vested with jurisdiction to investigate and
recommend to the Supreme Court of Florida the removal or reprimand of
any justice or judge. It is responsible for the enforcement of Article
V, Section 12(d) of the Florida Constitution.
3. Article V, Section 12(d) of the Florida Constitution provides that:
All proceedings by or before the commission shall be confidential;
provided, however, upon a finding of probable cause and the
filing by the commission with said clerk of such formal charges against
a justice or judge such charges and all further proceedings before the
commission shall be public. (emphasis added)
4. In May 1989, Plaintiff filed a complaint against a
Florida judge for unlawfully discriminating in open court against a
criminal defendant with AIDS. In support of his complaint, Plaintiff
filed a transcript of that hearing wherein the judge, after learning
that the criminal defendant had [**4] AIDS, stated:
I would like to know why this person is in this courtroom around all of
these people? I have a notion to hold you [the criminal defendant with
AIDS] in contempt. I want this person removed right now. [While
defendant does not dispute accuracy of the transcript, it does dispute
its materiality].
5. Defendant has a practice of advising complainants that
"pursuant to the provisions of Article V, Section 12, Florida
Constitution, the fact that a complaint against a judge had been filed
with this Commission is confidential. . . . You should abide by this
constitutional mandate."
6. Sometime in July 1989, the judge in question resigned prior to the
filing by the commission with its clerk of formal charges against the
judge. Plaintiff never received notice of any disposition of his
complaint.
7. Plaintiff desires to speak and publish articles about his complaint
but believes he cannot do so out of fear of prosecution for violating
Article V, Section 12, the text of which is attached hereto, and the
admonishment referred to in paragraph 5 above.
8. As described above, the acts of defendant, including its agents and
employees acting in their official capacities, were under [**5]
color of state law.
9. The Judicial Qualifications Commission contends that
confidentiality of JQC proceedings serves the following interests:
a. To prevent a complainant who might have self-serving motives from
publicly discussing the fact of filing of a complaint that may prove to
be unfounded until a preliminary investigation has been completed;
b. To minimize the risk of injury to the reputation of a judicial
constitutional officer caused by any adverse publicity from unfounded
complaints;
c. To maintain the public's confidence in its judicial officers by
preventing the premature disclosure of the fact of filing of a complaint
that may ultimately prove to be unfounded;
[*1523] d. To protect the complainant and witnesses from
possible pressure and recrimination;
e. To facilitate the investigation of a complaint;
f. To prevent the potential use of a constitutional agency to help
injure the reputation of a judge;
g. To protect the constitutional right of privacy of a member of the
Florida Bar who is also a constitutional officer -- a judge;
h. To assure that the public policy behind the subject constitutional
provision as adopted by the citizens of the State of Florida is [**6]
protected consistent with the will of the people.
II.
Under the scheme established by Section 12(d), a complainant is
permanently barred from revealing the fact that a complaint has been
filed until such time as the Commission may find probable cause and file
formal charges with the Florida Supreme Court. Thus when the Commission
does not find probable cause to file formal charges with the Supreme
Court the complainant is forever barred from revealing the fact that a
complaint has been filed. Likewise, where a judge resigns or retires
prior to the filing of formal charges the complainant may not reveal the
fact that a complaint has been filed. During July 1989, the judge
involved in the complaint filed by Doe resigned from the bench, thereby
depriving the JQC of jurisdiction and mooting out the proceeding.
Accordingly, Plaintiff has refrained from speaking or publishing
articles regarding his complaint due to fear of prosecution for
violation of § 12(d).
The sole issue to be determined today is whether the First Amendment
prohibits the JQC, insofar as it is charged with the responsibility of
enforcing Article V, Section 12(d) of the Florida Constitution, from
barring Doe from revealing [**7] the fact that he
filed a complaint with the JQC. There is no dispute that Doe is free to
discuss the underlying allegations comprising the nature of the
complaint. Indeed, in the course of oral argument, counsel for the
Defendant JQC conceded that Plaintiff remained free to disclose all
facts gathered by him alone and not as a result of his participation in
proceedings before the JQC. The JQC also conceded that Plaintiff could
even disclose his intention to file a complaint at a later time. Only
the fact of filing a complaint is barred, and therefore our ruling is
limited to that discrete issue.
The JQC presents two alternative bases for its claim that the
confidentiality rule as applied does not violate the First Amendment:
first, that the rule represents a valid time, place and manner
regulation; and second, that the restriction on the Plaintiff's freedom
of expression is sufficiently justified by the State's interest in
maintaining confidentiality regarding the filing of complaints against
judges. A close analysis of the JQC's claims leads us to conclude first
that the confidentiality rule is not a valid time, place and manner
restriction. Moreover, the governmental interests [**8] set
forth as justifications for the rule as applied here are not
sufficiently compelling to survive a First Amendment challenge.
Government regulation of speech on the basis of content is presumed to
violate the First Amendment. City
of Renton v. Playtime Theatres Inc., 475 U.S. 41, 46-47, 106 S. Ct.
925, 928, 89 L. Ed. 2d 29 (1986). However, government regulation of
the time, place or manner of protected speech is valid provided the
restrictions "are justified without reference to the content of the
regulated speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open alternative channels for
communication of the information." Clark
v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.
Ct. 3065, 3069, 82 L. Ed. 2d 221 (1984). See also Ward
v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746, 2753, 105 L.
Ed. 2d 661 (1989), rehearing den., 492
U.S. 937, 110 S. Ct. 23, 106 L. Ed. 2d 636; Young
v. American Mini Theatres, Inc., 427 U.S. 50, 96 S. Ct. 2440, 49 L.
Ed. 2d 310 (1975). In the instant case, the confidentiality rule as
applied clearly does not satisfy two of the requisite elements for a
valid time, place and manner [**9] restriction. First, the
rule is not justified [*1524] without reference to the
content of the speech which the government seeks to prohibit. Second,
the rule plainly does not allow for alternative avenues of communication
in situations where the JQC does not file a formal complaint with the
Florida Supreme Court.
A common thread running through the time, place and manner restrictions
is that each of the regulations were justified on the basis of secondary
effects emanating from the proscribed speech rather than on the basis of
the content of the speech standing alone. See e.g. Renton,
475 U.S. at 43-44 (upholding zoning ordinance on adult movie
theatres based on the finding that the ordinance was primarily concerned
with the secondary effects of adult theatres on surrounding
neighborhoods rather than the content of the movies themselves); Ward,
109 S. Ct. at 2750 (upholding regulations of concert performances in
public park based on the determination that the regulations were
concerned with controlling noise levels rather than restricting the
content of concert performances); Clark,
468 U.S. at 288 (finding prohibition of protest camping on public
lands to be constitutional where [**10] justified on the
basis of aesthetic considerations rather than on the basis of content
regulation). The law is clear, however, that where a rule or regulation
is intended to restrain speech based on content, the restriction
violates the First Amendment. As the Supreme Court observed in Young,
427 U.S. at 63-64;
Nor may speech be curtailed because it invites dispute, creates
dissatisfaction with conditions the way they are, or even stirs people
to anger. The sovereign's agreement or disagreement with the content of
what a speaker has to say may not affect the regulation of the time,
place or manner of presenting speech. (Footnote omitted)
Recently, in Baugh
v. Judicial Inquiry and Review Commission, 907 F.2d 440 (4th Cir.
1990), the Fourth Circuit considered a First Amendment challenge to
a confidentiality rule similar to the one at issue today. n1 The state
attempted to justify its confidentiality regulation by claiming that the
regulation was an "effective method for identifying unfit or
disabled judges and facilitating disciplinary action or their removal
from the bench." Id.
at 444. In expressly rejecting the notion that the Virginia
confidentiality provision represents [**11] a valid time,
place and manner restriction, the Fourth Circuit wrote that:
Although the Commission argues that this justification is unrelated to
the content of the speech, it is inescapable that the asserted
justification for section 2.1-37.13 is very closely related to the
content of the speech. The reason that it may be an effective method of
motivating disabled or unfit judges to voluntarily resign from the bench
is that by resigning, a judge may avoid the public criticism that might
follow were it revealed that a complaint had been filed against him. It
is the content of the speech that is critical to section 2.1-37.13 for
it silences all speech related to the actual filing of a complaint with
the Commission and thus is not a regulation that has only the
"secondary" or incidental effect of restricting speech. The
outright, direct ban on speech concerning this single topic can only be
justified by the content of the speech.
Id.
at 444, (citing Doe
v. Supreme Court of Florida, 734 F. Supp. 981 (S.D. Fla. 1990)
(Florida Bar Rule prohibiting complainant from disclosing information
regarding disciplinary proceedings is not justified on bases unrelated
to the content of [**12] the [*1525] speech); Providence
Journal Co. v. Newton, 723 F. Supp. 846, 854 (D.R.I. 1989)
(confidentiality provisions of Rhode Island's government ethics law
prohibiting public discussion of existence and content of complaint
filed against public official are "prototypical content-based
regulations of protected speech").
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - -
- - - -
n1 The provision at issue in Baugh, Section 2.1-37.13 of the
Virginia Code provided that:
All papers filed with and proceedings before the Commission, . . .
including the identification of the subject judge as well as all
testimony and other evidence and any transcript thereof made by a
reporter, shall be confidential and shall not be divulged, other than to
the Commission, by any person who either files a complaint with the
Commission, or receives such complaint in an official capacity, or
investigates such complaint by a member, employee or agent of the
Commission, or participates in any recording or transcription thereof,
except that the record of any proceeding filed with the Supreme Court
shall lose its confidential character.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - -
- - - - [**13]
In the instant case, the JQC has not presented any non-content related
justifications for the confidentiality rule. Rather, each of the stated
justifications for the rule -- avoidance of the complaint mechanism
being used as a sounding device for unfounded complaints; protection of
the privacy of state judges; facilitation of investigations; and the
state interest in upholding the reputations of and public confidence in
individual judges as well as the judiciary as an institution -- are all
directly related to the content of the prohibited speech rather than any
secondary effects emanating from the speech. Accordingly, the provision
may not be justified simply as a content-neutral time, place and manner
restriction.
Moreover, the confidentiality provision as applied to the facts of this
case also fails to pass muster as a time, place and manner restriction
since the Plaintiff is left with no alternative means of communicating
the fact that he has filed a complaint against a judge with the JQC. In
instances such as these where formal charges will not be filed with the
Florida Supreme Court, the complainant is forever barred from comment on
the fact that a complaint has been filed. [**14] Therefore,
the rule is manifestly not justifiable as a mere time, place and manner
restriction. See Doe,
supra (confidentiality provision concerning complaints against
attorneys made to the Florida Bar may not be classified as a valid time,
place and manner restriction where the provision acts as an absolute bar
to speech or publication regarding the complaint). Moreover, where a
restriction on speech is imposed on the basis of the content of the
speech itself, the restriction is subject to the "most exacting
scrutiny." Texas
v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 2543, 105 L. Ed. 2d 342
(1989) (quoting Boos
v. Barry, 485 U.S. 312, 321, 108 S. Ct. 1157, 99 L. Ed. 2d 333
(1988)). A content-based restriction on protected speech must be
"necessary to serve a compelling state interest" and must be
"narrowly drawn to achieve that end." Boos,
485 U.S. at 321 (quoting Perry
Education Association v. Perry Local Educators' Association, 460
U.S. 37, 45, 103 S. Ct. 948, 955, 74 L. Ed. 2d 794 (1983). And the
burden rests squarely on the government to show the existence of such
compelling interests. First
National Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S. Ct.
1407, [**15] 55 L. Ed. 2d 707 (1978).
Where a restriction on speech implicates the free discussion of
governmental affairs, the courts have been particularly vigilant in
enforcing First Amendment rights. As the Supreme Court observed in Mills
v. Alabama, 384 U.S. 214, 218, 86 S. Ct. 1434, 1437, 16 L. Ed. 2d
484 (1966):
Whatever differences may exist about interpretations of the First
Amendment, there is practically universal agreement that a major purpose
of that Amendment was to protect the free discussion of governmental
affairs.
See also Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 838, 98 S. Ct.
1535, 56 L. Ed. 2d 1 (1978) (finding that publication of information
regarding proceedings before judicial disciplinary board "lies near
the core of the First Amendment"); Butterworth
v. Smith, 494 U.S. 624, 110 S. Ct. 1376, 1381, 108 L. Ed. 2d 572
(1990) ("the publication of information relating to alleged
governmental misconduct . . . has traditionally been recognized as lying
at the core of the First Amendment."). The High Court has further
recognized that:
a principle "function of free speech under our system of government
is to invite dispute. It may indeed best serve its high [**16]
purpose when it induces a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to anger."
Johnson,
109 S. Ct. at 2541 (quoting Terminiello
v. Chicago, 337 U.S. 1, 4, 69 S. Ct. 894, 896, 93 L. Ed. 1131
(1949)). In this case, the Plaintiff seeks to publicly criticize
[*1526] the JQC for failing to disclose the disposition of
the complaint and for the nature of the disposition itself.
The JQC's stated justifications for Section 12(d) must be evaluated
against this backdrop of strict analysis. The JQC has set forth the
following governmental interests in support of the confidentiality
provision:
a. To prevent a complainant who might have self-serving motives from
publicly discussing the fact of filing of a complaint that may prove to
be unfounded until a preliminary investigation has been completed;
b. To minimize the risk of injury to the reputation of a judicial
constitutional officer caused by any adverse publicity from unfounded
complaints;
c. To maintain the public's confidence in its judicial officers by
preventing the premature disclosure of the fact of filing of a complaint
that may ultimately prove to be unfounded;
d. To protect [**17] the complainant and witnesses from
possible pressure and recrimination;
e. To facilitate the investigation of a complaint;
f. To prevent the potential use of a constitutional agency to help
injure the reputation of a judge;
g. To protect the constitutional right of privacy of a member of the
Florida Bar who is also a constitutional officer -- a judge; and
h. To assure that the public policy behind the subject constitutional
provision as adopted by the citizens of the State of Florida is
protected consistent with the will of the people.
The interests asserted by the JQC may be consolidated into
four principal interests:
1) Prevention of damage to the reputation of individual judges as well
as the judiciary as an entity resulting from the filing of complaints
which ultimately prove to be unfounded and prevention of concomitant
loss of confidence in the judicial system resulting from the filing of
unmeritorious complaints;
2) Avoidance of the possibility that a complainant might use publication
of the fact that a complaint has been filed as a "bully
pulpit" for the dissemination of a baseless complaint;
3) Facilitation of effective investigations by the Judicial
Qualifications [**18] Commission;
4) Protection of judge's constitutional right of privacy.
Each one of these justifications will be analyzed below.
A. Reputational Considerations
While Florida surely has a valid interest in maintaining the reputation
of its judges and the integrity of its judiciary, this interest is
plainly insufficient under controlling precedent to sustain this
restriction on free speech. In Landmark, the Supreme Court
squarely addressed the issue of whether regulations mandating
confidentiality as to information concerning judicial disciplinary
proceedings may be justified as a means of protecting the reputation of
judges. Landmark arose out of a challenge to a Virginia statute
which subjected persons to criminal sanctions for disclosing information
regarding judicial misconduct proceedings. Virginia defended the
constitutionality of the statute, much as the JQC argues today, by
maintaining that the statute was necessary to protect the reputations of
Virginia's judges as well as to maintain the institutional reputation of
Virginia's courts. In finding these interests insufficient to justify
the infringement on First Amendment speech, the Supreme Court found
that:
[**19] neither the Commonwealth's interest in protecting the
reputation of its judges, nor its interest in maintaining the
institutional integrity of its courts is sufficient to justify the
subsequent punishment of speech at issue here, even on the assumption
that criminal sanctions do in fact enhance the guarantee of
confidentiality. Admittedly, the Commonwealth has an interest in
protecting the good repute of its judges, like that of all other public
officials. Our prior cases have firmly established, however, that injury
to official reputation is an insufficient reason "for repressing
speech that would [*1527] otherwise be free." New
York Times v. Sullivan, 376 U.S. at 272-273, 84 S. Ct. at 722.
See also Garrison
v. Louisiana, 379 U.S. 64, 67, 85 S. Ct. 209, 212, 13 L. Ed. 2d 125
(1964). The remaining interest sought to be protected, the
institutional reputation of the courts, is entitled to no greater weight
in the constitutional scales. See New
York Times v. Sullivan, supra.
Landmark,
435 U.S. at 841-42. See also Butterworth,
110 S. Ct. at 1382 ("reputational interests alone cannot
justify the proscription of truthful speech.")
The Supreme Court went on to reject the notion [**20] that
the Virginia confidentiality provision could be justified as an attempt
to promote confidence in Virginia's judicial system. Citing Bridges
v. California, 314 U.S. 252, 270-271, 62 S. Ct. 190, 86 L. Ed. 192
(1941), the Supreme Court observed that:
"The assumption that respect for the judiciary can be won by
shielding judges from published criticism wrongly appraises the
character of American public opinion . . . . An enforced silence,
however limited, solely in the name of preserving the dignity of the
bench, would probably engender resentment, suspicion, and contempt much
more than it would engender respect."
Landmark,
435 U.S. at 842. The Supreme Court's analysis of the reputational
justification in Landmark is equally applicable here. The JQC's
asserted interests in protecting the reputation of individual judges as
well as the judiciary as an institution is insufficient to support the
restriction on free speech. Moreover, the JQC's contention that the
confidentiality rule promotes public confidence in the judiciary is
unconvincing. The JQC's asserted interest in preserving the reputation
of judges from the making of unfounded complaints is largely undermined
by its concession [**21] that the complainant remains free
to disclose all the underlying facts supporting the claim, and even the
stated intention to file a complaint with the JQC. Indeed, the JQC
conceded that a complainant could freely disclose the underlying facts
supporting the complaint even if called upon to testify before the JQC.
Only the fact of filing a complaint is barred. Imposing a forced silence
on the fact of filing complaints with the JQC is more likely to engender
resentment and suspicion than to promote confidence or integrity.
Finally, even if the reputational interests cited by the Defendant were
sufficient to justify some restrictions on First Amendment rights, §
12(d) is plainly an overbroad means of perfecting those interests. In
the first place, the prohibition is not limited to the revelation of
false complaints against members of the judiciary; rather, the provision
applies to all complaints, even those that prove to be meritorious.
Second, § 12(d) forever bars the publication of the fact that a
complaint has been filed even in cases where a judge retires or resigns
prior to the filing of formal charges with the Supreme Court. The fact
that the publication of a meritorious claim [**22] against a
judge may erode public confidence in the judiciary is not sufficient
basis to absolutely prohibit speech otherwise free. See Landmark,
435 U.S. at 841-42.
B. Bully Pulpit
The JQC also maintains that by barring disclosure of the fact of filing
a complaint, the rule avoids the possibility that a complainant might
wrongfully use the fact of filing with the JQC as a means to amplify and
legitimate the claim. This justification is not sufficiently persuasive
to prohibit the exercise of free speech.
The assertion of this interest overstates the degree to which
publication of the fact that a complaint has been filed will lead the
people to believe that the complaint is likely to be true. Our people
are surely familiar with the fact that frivolous complaints are
frequently filed both in courts and before various administrative
bodies. The notion that the people are somehow unable to determine for
themselves what to believe or not believe about issues concerning the
body politic is belied by the history of a free people involved in self
governance. The danger that publication of filing a complaint will
necessarily result in overvaluation [*1528] of its merits is
largely illusory. [**23] This seems especially so where the
Defendant JQC has conceded that the complainant may freely disclose the
underlying nature of the complaint. And in this case, the Plaintiff's
complaint is based upon a transcript of what happened in open court, not
information gleaned from a JQC proceeding or hearing.
Additionally, the confidentiality provision is an overbroad means of
accomplishing the Defendant's stated justification of avoiding what it
has called "the bully pulpit effect." As noted already, the
provision at issue applies not only to false complaints, but to the
truth as well. Here Florida seeks to proscribe or punish "the
publication of information relating to government misconduct -- speech
which has traditionally been recognized as lying at the core of the
First Amendment." Butterworth
v. Smith, 110 S. Ct. at 1381; Landmark,
435 U.S. at 838. To justify such a prohibition, the JQC must
evidence a "state interest of the highest order." Smith
v. Daily Mail Publishing Co., 443 U.S. 97, 103, 99 S. Ct. 2667,
2671, 61 L. Ed. 2d 399 (1979). We do not think it has met so
exacting a standard.
C. Facilitation of Investigations
While the JQC surely has an interest in facilitating [**24]
the effective investigation of complaints, the JQC has failed to cite
any evidence that the confidentiality rule furthers such an interest.
The JQC does no more than merely assert the fact that secrecy with
respect to the act of filing a complaint facilitates effective
investigations. To the extent that the JQC asserts that potential
complainants will be discouraged from filing complaints in the absence
of a confidentiality rule, § 12(d) as applied to this case does not
further the filing of complaints. It is important to note that Plaintiff
Doe only wishes to publicize the fact that he has filed a complaint with
the JQC. In the absence of the confidentiality provision, a complainant
remains equally free not to reveal the fact that a complaint has been
filed. See Butterworth
110 S. Ct. at 1382 ("the concern that some witnesses will be
deterred from presenting testimony due to fears of retaliation is . . .
not advanced by this prohibition; any witness is free not to
divulge his own testimony . . .").
Moreover, we do not see how witnesses will be discouraged from
testifying merely by prohibiting the disclosure that a complaint has
been filed with the JQC. To the contrary, there [**25] is
little reason to believe that an aggrieved complainant will be
discouraged from filing a meritorious complaint with the JQC just
because he may have the power to disclose publicly the fact of filing.
In fact, the publication of a complaint may well have the effect of
furthering the investigation by the JQC by creating awareness of the
complaint on the part of third-party witnesses who may then come forward
and testify before the JQC. In short, in the absence of evidence put
forth by the JQC as to the means by which the confidentiality provision
promotes the effective determination of complaints, we are unprepared to
find that this interest is sufficiently compelling to overcome the
infringement of basic First Amendment rights created by the provision.
We emphasize that Doe does not challenge that part of the
confidentiality provision which prohibits publication of events which
take place during JQC proceedings.
D. Protection of Privacy Interests
The JQC also has posited that the confidentiality rule is justified by a
governmental interest in protecting "the constitutional right of
privacy of a member of The Florida Bar who is also a constitutional
officer -- a judge." Defendant's [**26] Memorandum of
Law, at 4. We are not persuaded by the Defendants' assertion of an
interest in protecting judges' constitutional right to privacy.
The Supreme Court has observed that:
The cases sometimes characterized as protecting "privacy" have
in fact involved at least two different kinds of interests. One is the
individual interest in avoiding disclosure of personal matters, and
another is the interest in independence in making certain kinds of
important decisions.
Whalen
v. Roe, 429 U.S. 589, 599-600, 97 S. Ct. 869, 876, 51 L. Ed. 2d 64
(1977) (footnotes [*1529] omitted). In the instant case,
the Plaintiff seeks to reveal the fact that a complaint has been filed
regarding an action taken by a judge in open court. We fail to see any
means by which a revelation of a complaint concerning a public act taken
by a sitting judge in open court can be construed as constituting
disclosure of a personal matter in contravention of a protectable
privacy interest. Moreover, the disclosure of the fact that a complaint
has been filed manifestly has no implications on the judge's interest in
independently making important decisions. Accordingly, we can find no
privacy interests which are even colorably [**27] implicated
here by disclosure that a complaint has been filed.
In maintaining that the confidentiality provision is justified by a
state interest in protecting the privacy of judges against whom
complaints have been filed, the Defendant cites Seattle
Times Co. v. Rhinehart, 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d
17 (1984). In Rhinehart, the Supreme Court upheld the
constitutionality of a protective order which prohibited the defendant
in a libel action from revealing information gathered through discovery
where the protective order does not prohibit the dissemination of facts
gained from sources other than discovery. The instant case may be easily
distinguished from Rhinehart. In this case, the Plaintiff seeks
to reveal the fact that he has filed a complaint with the JQC. Notably,
this information is known to the Plaintiff outside of any participation
in a judicial proceeding. The basis for the complaint is information
derived in open court, not in the course of the JQC disciplinary
process. Thus, this case falls within the principle that where a person
"lawfully obtains truthful information about a matter of public
significance . . . state officials may not constitutionally [**28]
punish publication of the information, absent a need to further a state
interest of the highest order." Smith
v. Daily Mail Publishing Co., 443 U.S. at 103. See also Butterworth,
110 S. Ct. at 1381.
In sum, we find that the JQC has failed to set forth any compelling
interests alone or in concert sufficient to justify the application of
§ 12(d) to prohibit the truthful publication of the simple fact that a
complaint has been filed by Plaintiff John Doe with the JQC.
Accordingly, it is
ORDERED AND ADJUDGED that Plaintiff's Motion for Summary Judgment is
GRANTED. Insofar as Article V, Section 12(d) of the Florida Constitution
prohibits complainants from revealing simply the fact that a
complaint has been filed with the Judicial Qualification
Commission, it is hereby declared unconstitutional as applied
to this Plaintiff. It is further
ORDERED AND ADJUDGED that the JQC is enjoined from enforcing the
confidential provision of Article V, Section 12(d), insofar as it
prohibits the complainant, John Doe, from disclosing the fact that a
complaint has been filed with the JQC.
DONE AND ORDERED. at Miami, Florida, this [**29] 28 day of
September, 1990.
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