Original petition for mandamus or prohibition.
MR. JUSTICE UNDERWOOD DELIVERED THE DECISION OF THE COURT AND THE FOLLOWING OPINION IN WHICH MR. JUSTICE RYAN AND MR. JUSTICE KLUCZYNSKI JOIN:
Rehearing denied September 29, 1978.
Pursuant to our Rule 381 (58 Ill.2d R. 381) we allowed the Judicial Inquiry Board leave to file an original petition for mandamus or prohibition. That petition seeks to compel Judge Harry D. Hartel, Jr., of the Lake County circuit court to vacate his order commanding the Board to produce the fruits of its investigation of the conduct of Judge Charles A. Alfano (defendant). The petition also seeks to prohibit any future attempts to compel disclosure of the Board's actions regarding Judge Alfano or the results thereof.
Charles Alfano is an associate judge of the circuit court of Cook County. On September 5, 1977, he was arrested by Officer Whitmore of the Lake County sheriff's department and charged with battery and obstructing a police officer from performing his duties, both misdemeanor offenses. Those charges are presently pending before the circuit court of Lake County in a case entitled People v. Charles Alfano. After his arrest, the Judicial Inquiry Board began an investigation to determine whether the incidents giving rise to that arrest constituted a basis for the filing of a complaint before the Courts> Commission. That action was independent of any other investigation by the State's Attorney or police. In the course of that investigation, which is still pending, the Board has obtained certain statements and documents relevant to the incident. One person has testified before the Board while under oath. The Board has not disclosed any information to the State's Attorney, and its chairman states in an affidavit that the Board will not make any future disclosure to that office. In November defendant moved the trial court to order "that the files of the Judicial Inquiry Board be produced for defendant's inspection or, in the alternative, that they be produced for inspection by this Court in camera and those portions thereof which contain material exculpatory to defendant be produced for defendant's inspection." He alleged as grounds for his motion that:
"1. The Judicial Inquiry Board has conducted an extensive investigation into this case. The investigator for the Judicial Inquiry Board has interrogated substantially all of the witnesses including several who have refused to submit to interrogation by this defendant.
2. The investigator for the Judicial Inquiry Board has from time to time revealed to witnesses friendly to defendant the substance of what other witnesses have stated. In certain instances statements exculpatory to defendant have been revealed. In other instances statements of what occurred which are at variance with prior statements of witnesses adverse to defendant have been revealed."
Simultaneously, a subpoena duces tecum was served on the Board's chairman ordering him to appear and produce the "investigative file in the matter of Charles A. Alfano, including reports of all witnesses interviewed."
Following a hearing on defendant's motion to produce the Board's file and the Board's motion to quash the subpoena duces tecum, an order was entered by Judge Hartel on December 14, 1977, denying the motion to quash and directing the Board to produce at the time of trial all substantially verbatim statements made by any person named on the State's list of witnesses in the criminal proceeding, to make available to defendant at the conclusion of any witnesses' direct trial testimony the statements of that witness, and, in addition, to produce within 14 days for the court's inspection all evidence obtained by the Board during its investigation, the court to deliver to respondent any evidence which "tends to negate the defendant's guilt or which is of an exculpatory nature." It is that order vacation of which is sought in this action.
The Judicial Inquiry Board was created by article VI, section 15(b), of the Illinois Constitution. It is an integral part of Illinois' system of judicial discipline. Under section 15(c) the Board is authorized to conduct investigations, to receive or to initiate complaints concerning a judge, and to file with the Courts> Commission complaints in those cases in which the Board has determined that a reasonable basis exists to charge a judge with misconduct or disability. The Courts> Commission, established by section 15(e), hears complaints filed by the Board and determines the discipline, if any, to be imposed. That discipline may include removal of the judge from office. Of particular importance here is the provision in section 15(c) that "[a]ll proceedings of the Board shall be confidential except the filing of a complaint with the Courts> Commission." (Emphasis added.) Ill. Const. 1970, art. VI, sec. 15(c).
The Board urges that the confidentiality provision of section 15(c) precludes the disclosure ordered by the trial court; that such disclosure would unconstitutionally impede the Board's performance of its duties; that because the material required to be disclosed has not been disclosed to the prosecution and is unavailable to it, the due process principles relied upon by the trial judge are inapplicable; and that, assuming judicially compelled production would be appropriate in some circumstances, that production would require the showing of a compelling and particularized need which has not been demonstrated here.
In contrast to the Board's contention that its confidentiality is absolute, Judge Alfano contends the principle reason for the confidentiality provision of 15(c) was the protection of judges against unfavorable publicity resulting from irresponsible and unfounded charges or complaints, and that, since it is he who is requesting disclosure, the need for confidentiality is substantially diminished. It is clear that protection of judges from such charges and complaints was an important consideration in the adoption of the confidentiality provision by the Constitutional Convention. (6 Record of Proceedings, Sixth Illinois Constitutional Convention 867.) Other elements, including the encouragement and protection of witnesses, must also be evaluated however, and we cannot conclude, simply because the judge under investigation consents to disclosure, that the Board's files may automatically be opened to inspection. See In re Mikesell (1976), 396 Mich. 517, 534, 243 N.W.2d 86, 94; McCartney v. Commission on Judicial Qualifications (1974), 12 Cal.3d 512, 520-21, 526 P.2d 268, 274, 116 Cal.Rptr. 260, 266.
By no means the least of the factors requiring consideration is the fact that the confidentiality which we are asked to breach here is not of the ordinary common law or statutorily provided variety. It is an expressly stated mandate of our constitution that "All proceedings of the Board shall be confidential * * *." (Emphasis added.) Its intent is unmistakable, it is impervious to legislative or judicial change, and it must be implemented except as overriding Federal due process requirements compel us to do otherwise.
The Board argues that if we conclude some form of judicially compelled disclosure is permissible, the prerequisites thereto are akin to those in situations where disclosure of the identities of government "informers" is sought or where production of transcripts of the testimony of witnesses before a grand jury is requested, and that those prerequisites have not been met here. Neither of those privileges is constitutionally based, and, of course, neither is absolute. The informer's privilege must yield to the requirements of a fair trial. (Roviaro v. United States (1957), 353 U.S. 55, 1 L.Ed.2d 639, 77 S.Ct. 623; People v. Lewis (1974), 57 Ill.2d 232), and the "indispensable secrecy of grand jury proceedings" referred to in United States v. Johnson (1943), 319 U.S. 503, 513, 87 L. Ed. 1546, 1555, 63 S.Ct. 1233, 1238, has suffered increasing diminution in the Federal courts>. While the Supreme Court in United States v. Procter & Gamble Co. (1958), 356 U.S. 677, 2 L.Ed.2d 1077, 78 S.Ct. 983, and Pittsburgh Plate Glass Co. v. United States (1959), 360 U.S. 395, 3 L.Ed.2d 1323, 79 S.Ct. 1237, acknowledged the existence of instances when a particularized showing of a compelling necessity would require piercing the veil of grand jury secrecy, the policies against disclosure were generally reaffirmed. The showing of the compelling and particularized need required by Procter & Gamble and Pittsburgh Plate Glass was held to have been satisfied by government concessions and the peculiar facts in the later case of Dennis v. United States (1966), 384 U.S. 855, 16 L.Ed.2d 973, 86 S.Ct. 1840, but the suggestion in that opinion of a more liberalized approach to disclosure questions has prompted a dichotomy in the lower Federal court decisions on similar questions. That divergence is typified, perhaps, by Bast v. United States (4th Cir. 1976), 542 F.2d 893, emphasizing that where it is necessary to breach the secrecy of grand jury proceedings, it should be done "discreetly and limitedly" and only upon a showing of a particularized need, and Harris v. United States (D.C. Cir. 1970), 433 F.2d 1127, holding that a defendant is automatically entitled to relevant grand jury testimony of a witness who testifies at trial. We note, however, that even the cases ordering production of privileged material have not done so in the course of an ongoing, uncompleted investigation by a governmental agency as in the case before us. (In re Bonanno (2d Cir. 1965), 344 F.2d 830, 834.) In fact, the Federal courts> generally refuse to allow pretrial inspection of grand jury minutes simply for the purpose of preparing for trial. Annot., Accused's Right to Inspection of Minutes of Federal Grand Jury, 3 A.L.R. Fed. 29, 63 (1970).
Some of the reasons for secrecy in grand jury proceedings, in Judicial Inquiry Board proceedings and in concealing the identities of government informers are similar, but there are additional factors militating against disclosure of Board affairs. The Supreme Court in its recent opinion Landmark Communications, Inc. v. Virginia (1978), 435 U.S. 829, 56 L.Ed.2d 1, 98 S.Ct. 1535, recognized that confidentiality was uniformly regarded as an important factor in the effective operation of State judicial disciplinary commissions in that it encouraged "the willing participation of relevant witnesses by providing protection against possible retaliation or recrimination," protected judges "from the injury which might result from publication of unexamined and unwarranted complaints," maintained confidence in the judiciary by avoiding publicity regarding groundless claims of judicial misconduct made by disgruntled litigants, facilitated the commission's work by encouraging the "voluntary" resignation or retirement of judges as to whom complaints justifying removal were under consideration since their resignation or retirement would avoid the publicity attendant upon a formal charge or hearing, and made possible the adjustment of minor complaints which might appropriately be called to the judge's attention without publicity. Other than as it generally confirms the value of the confidentiality bestowed upon commission proceedings, that opinion is not particularly relevant to the issue here, however, for it held only that the first amendment did not permit the criminal punishment of a third party (a newspaper owner) who is a stranger to proceedings before a judicial review commission for publishing truthful information regarding confidential proceedings of that commission.
Other cases concerning judicial disciplinary proceedings also emphasize the need for confidentiality. In reconciling potentially conflicting provisions of its State constitution, the Supreme Court of Florida observed in Forbes v. Earle (Fla. 1974), 298 So.2d 1, 4:
"The purpose [of its judicial qualifications commission] is to process complaints concerning the judiciary from any and all sources, while requiring confidentiality as a means to protect both the complainant from possible recriminations and the judicial officer from unsubstantiated charges. Confidentiality is also necessary for the Commission to carry out its responsibility to make suitable recommendations concerning judicial personnel problems that affect court efficiency. Eliminating the confidentiality of these proceedings would also eliminate many sources of ...