The opinion of the court was delivered by: Mr. Chief Justice Castille
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
SUBMITTED: December 30, 2009
Mr. Chief Justice Castille delivered the Opinion of the Court, in which Messrs. Justice Saylor, Eakin and Baer, Madame Justice Todd, and Mr. Justice McCaffery joined with respect to Sections I and II; and in which Messrs. Justice Eakin, Baer and McCaffery joined with respect to Sections III-A and III-B; and an Opinion, in which Messrs. Justice Eakin and McCaffery joined, with respect to Sections III-C and IV. Mr. Justice Baer filed a Concurring and Dissenting Opinion. Madame Justice Todd filed a Concurring and Dissenting Opinion, in which Mr. Justice Saylor joined. Madame Justice Orie Melvin filed a Concurring and Dissenting Opinion.
The Judicial Conduct Board of Pennsylvania ("JCB") has filed a pleading styled as an "Application for Relief Pursuant to this Honorable Court's Order of November 6, 2009 in This Matter." The JCB requests that this Court uphold its objections to questions asked of JCB witnesses during the hearing conducted on December 8, 2009, by the Interbranch Commission on Juvenile Justice ("ICJJ").*fn1 The JCB also requests that we issue an order precluding the ICJJ from compelling answers to those questions from any JCB witness who is called to testify, and from compelling the production of any documents pursuant to subpoenas or document requests. We will exercise our King's Bench jurisdiction over this matter for the limited purpose of passing upon the question of confidentiality, see In re Avellino, 690 A.2d 1138 (Pa. 1997).
On November 4, 2009, the ICJJ issued a subpoena to compel the testimony of Joseph A. Massa, Jr., Esq., the JCB's Chief Counsel, at a public hearing that was scheduled for Monday, November 9, 2009. On November 6, 2009, the JCB filed an emergency application, requesting that this Court assume King's Bench jurisdiction over the matter and stay the subpoena issued by the ICJJ. The JCB sought to preclude Mr. Massa's testimony by raising several privileges, including (1) a constitutional privilege arising under Pa. Const. Art. V, § 18(a)(8) that guarantees the confidentiality of JCB proceedings, (2) the deliberative process privilege, and (3) the attorney-client privilege. The JCB also requested that the Court establish guidelines and procedures to maintain the confidentiality of information in the JCB's possession. A single-Justice order was entered that same day denying the JCB's emergency application, without prejudice to the JCB's right to forward claims of confidentiality or privilege before the ICJJ at the scheduled hearing.
Mr. Massa testified before the ICJJ as scheduled and continued his testimony on December 8, 2009. JCB Board Member Edwin L. Klett, Esq., also testified during the December 8 hearing, appearing as the designee of the JCB's Chairman.*fn2 The witnesses answered general questions posed by the ICJJ, but at counsel's instruction, they did not answer questions regarding the disclosure of information asserted to be confidential under the Pennsylvania Constitution. The witnesses answered questions regarding public information and hypothetical questions regarding the JCB's practices and procedures, but did not answer questions seeking information about specific complaints as to which formal JCB charges have not been filed.
With respect to the documents in dispute, on November 24, 2009, Judge John Cleland, the ICJJ's Chair, sent a letter to the JCB's counsel, Paul Titus, Esq. The letter noted that during Mr. Massa's testimony in November, he had referred to specific documents and indicated that he would determine whether the JCB would provide those documents to the ICJJ. Judge Cleland requested that the following documents be provided to the ICJJ's counsel by December 3, 2009:
(1) The first anonymous complaint filed against Judge Conahan that the Judicial Conduct Board identified, but did not attach as an exhibit, in its September 10, 2009 response brief in the Lokuta matter.*fn3
(2) Any preliminary and/or final investigative reports prepared in connection with the first anonymous complaint (as identified in the September 2009 Judicial Conduct Board Lokuta brief).
(3) Any preliminary and/or final investigative reports prepared in connection with the second anonymous complaint (as identified in the September 2009 Judicial Conduct Board Lokuta brief) received in September 2006.
(4) The letter from Conahan's counsel waiving confidentiality so as to allow the release of the information contained in the September 2009 Judicial Conduct Board Lokuta brief.
(5) The letter from Conahan's counsel reasserting confidentiality in connection with the first and second anonymous complaints referenced in the September 2009 Judicial Conduct Board Lokuta brief.
(6) Any other documents relating to the first and second anonymous complaints (as referred to in the September 2009 Lokuta brief) that would normally be discoverable in a Judicial Conduct Board matter if a public complaint had been filed.
See Exhibit C to JCB's Application for Relief.
On December 2, 2009, Mr. Titus provided the following responses to the numbered requests:
(1) The statements made in averments number 1) and 2) set forth on page 19 of the brief filed in the case entitled In Re: Ann H. Lokuta, 3 JD 06 in the Court of Judicial Discipline should not have been contained in the brief because they refer to confidential information.
(2) By reason of the provisions of the Constitution set forth above, the Board cannot comply with this request.
(3) By reason of the provisions of the Constitution set forth above, the Board cannot comply with this request.
(4) Upon review of the files of the Chief Counsel, it has been determined that no letter was received from Judge Conahan's counsel waiving confidentiality. The consent was given orally.
(5) There is no letter from former Judge Conahan's counsel reasserting confidentiality "in connection with the first and second anonymous complaints" referred to in the brief in the Lokuta case. There were, however, two letters received from counsel for former Judges Conahan and Ciavarella refusing to waive the confidentiality provisions applicable to ...