Petition for Review of Orders of Commonwealth Court at Nos. 1672 and 1810 C.D. 1983, filed December 28, 1983.
Donald E. Johnson, Chief Counsel, Pa. Crime Comm'n, St. Davids, G. Alan Bailey, Norristown, for petitioner.
Marion E. MacIntyre, Deputy Executive Atty. Gen., Harrisburg, Perry S. Bechtle, Philadelphia, for respondent.
Nix, C.j., and Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., and Flaherty, J., did not participate in the decision of this case. Larsen, J., did not participate in the consideration or decision of this case.
The Pennsylvania Crime Commission has petitioned the Court pursuant to Pennsylvania Rule of Appellate Procedure 3331(a)(5) for review of an order of the Commonwealth Court refusing to enforce a subpoena issued by the Commission and served on the Judicial Inquiry and Review Board. We have jurisdiction of this matter under 42 Pa.C.S. § 723(a).
The parties have stipulated to certain facts relevant in assessing the competing legal claims. Between May 8, 1983 and May 25, 1983, numerous articles and editorials appeared in The Philadelphia Inquirer, a general circulation newspaper, purporting to deal with an investigation of Supreme Court Justice Rolf Larsen by the Pennsylvania Judicial Inquiry and Review Board, and with the Board's sealing of the record of the investigation. These articles identified many high-ranking public officials and candidates for public office as witnesses before the Board, and contained what were represented to be verbatim transcripts of substantial portions of their testimony. (Stipulations of Fact 9-11).
According to Commissioner Alvin B. Lewis, who testified in the court below, the Pennsylvania Crime Commission took note of the information contained in the alleged verbatim transcripts published in these articles and decided by formal resolution that an investigation of possible "public corruption" was warranted.
On June 7, 1983, the Commission issued a subpoena to the Board which was served on the Board's Executive Director,
Richard E. McDevitt, on June 13, 1983. The subpoena, returnable on June 28, 1983, called for "the entire record of all proceedings including, but not limited to, testimonial transcripts and documents of The Judicial Inquiry and Review Board's investigation and hearings in the matter of Justice Rolf Larsen." (Stipulations of Fact 1, 4, 7, 8).
In the Commonwealth Court, the Board filed a motion to quash the subpoena and the Commission filed a petition to enforce the subpoena. After several hearings, the court denied the enforcement petition and granted the motion to quash, holding that the confidentiality of the Board's proceedings is not a qualified privilege, but "can only fall when the record of Board proceedings is accompanied by a recommendation [to the Supreme Court] for censure and at no other time." In Re: Subpoena to Judicial Inquiry and Review Board, 79 Pa. Commw. 375, 391, 470 A.2d 1048, 1055 (1983).*fn1
In asking this Court to reverse the Commonwealth Court's order denying enforcement of its subpoena, the Commission, while acknowledging the constitutional basis of the Board's privilege of confidentiality, argues that the court below interpreted that privilege too expansively. The Pennsylvania Constitution provides as follows:
(g) If, after hearing, the board finds good cause therefor, it shall recommend to the Supreme Court the suspension,
removal, discipline or compulsory retirement of the justice or judge.
(h) The Supreme Court shall review the record of the board's proceedings on the law and facts and may permit the introduction of additional evidence. It shall order suspension, removal, discipline or compulsory retirement, or wholly reject the recommendation, as it finds just and proper . . . . All papers filed with and proceedings before the board shall be confidential but upon being ...